Citation Nr: 21062572 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 14-16 874 DATE: October 8, 2021 ORDER Entitlement to a 40 percent rating prior to December 2, 2020 for degenerative disc disease at L4-L5 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an increased evaluation in excess of 40 percent for degenerative disc disease at L4-L5 after December 2, 2020 is denied. Entitlement to a 10 percent rating for radiculopathy, sciatic nerve, left lower extremity, prior to December 23, 2016 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 40 percent after December 23, 2016 for radiculopathy, sciatic nerve, left lower extremity is denied. Entitlement to a 10 percent rating for radiculopathy, sciatic nerve, right lower extremity, prior to December 23, 2016 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 40 percent after December 23, 2016 for radiculopathy, sciatic nerve, right lower extremity is denied. Entitlement to a 10 percent rating for radiculopathy, femoral nerve, left lower extremity, prior to December 23, 2016 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent after December 23, 2016 for radiculopathy, femoral nerve, left lower extremity is denied. Entitlement to a 10 percent rating for radiculopathy, femoral nerve, right lower extremity, prior to December 23, 2016 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent after December 23, 2016 for radiculopathy, femoral nerve, right lower extremity is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability for the period prior to December 23, 2016 is denied. FINDINGS OF FACT 1. Affording the Veteran, the benefit of doubt, prior to December 2, 2020 the Veteran's degenerative disc disease at L4-L5 manifested a range of motion (ROM) of 30 degrees or less, and during flare-ups manifested symptoms of being completely incapacitated, with very limited movement and no bending. 2. At no time during the period on appeal did the Veteran's degenerative disc disease at L4-L5 manifest ankylosis. 3. Affording the Veteran, the benefit of the doubt, prior to December 23, 2016, he experienced radicular pain involving the sciatic nerve root from his back, through his bilateral lower extremities to his calves. 4. After December 23, 2016, the Veteran's radiculopathy, sciatic nerve, bilateral lower extremities have been manifested by no more than moderately-severe incomplete paralysis 5. Affording the Veteran, the benefit of the doubt, prior to December 23, 2016, he experienced radicular pain involving the femoral nerve root from his back, through his bilateral lower extremities to his calves. 6. After December 23, 2016, the Veteran's radiculopathy, femoral nerve, bilateral lower extremities have been manifested by no more than severe incomplete paralysis 7. The Veteran's service-connected disabilities do not preclude him from securing substantially gainful employment for the period prior to December 23, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to rating of 40 percent rating, but no higher, prior to December 2, 2020, for degenerative disc disease at L4-L5 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for entitlement to rating in excess of 40 percent after December 2, 2020, for degenerative disc disease at L4-L5 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.71a, DC 5237. 3. The criteria for entitlement to rating of 10 percent rating, but no higher, prior to December 23, 2016, for radiculopathy, sciatic nerve, left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. The criteria for entitlement to rating greater than 40 percent after December 23, 2016, for radiculopathy, sciatic nerve, left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. The criteria for entitlement to rating of 10 percent rating, but no higher, prior to December 23, 2016, for radiculopathy, sciatic nerve, right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 6. The criteria for entitlement to rating greater than 40 percent after December 23, 2016, for radiculopathy, sciatic nerve, right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520 7. The criteria for entitlement to rating of 10 percent rating, but no higher, prior to December 23, 2016, for radiculopathy, femoral nerve, left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 8. The criteria for entitlement to rating greater than 30 percent after December 23, 2016, for radiculopathy, femoral nerve, left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 9. The criteria for entitlement to rating of 10 percent rating, but no higher, prior to December 23, 2016, for radiculopathy, femoral nerve, right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 10. The criteria for entitlement to rating greater than 30 percent after December 23, 2016, for radiculopathy, femoral nerve, right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 11. The criteria for entitlement to TDIU prior to December 23, 2016, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to September 1973, and again from March 1974 to June 1988. The Veteran testified before the undersigned Veterans Law Judge during a June 2017 hearing. A transcript of that hearing is in the record. The matter has been remanded numerous times in an attempt to obtain an adequate opinions, most recently in July 2021. The Board finds that remanding again for additional development is not likely to result in more detailed opinions than have previously been provided. The Board has undertaken review of the record and adjudicated these claims with the concept of resolving all reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102(c). See also Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an increased evaluation in excess of 10 percent prior to December 23, 2016, in excess of 20 percent from December 23, 2016, to December 2, 2020, and in excess of 40 percent thereafter for degenerative disc disease at L4-L5 During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed, effective on February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran's back disability has been rated under Diagnostic Code (DC) 5237 for degenerative disc disease of the spine. Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, DC 5237. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DCs 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with Intervertebral Disc Syndrome (IVDS) under DC 5243 and all other intervertebral disc disabilities under DC5 242. As such, DC 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); DC 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses. Under the rating criteria in effect prior to February 2021, for purposes of evaluations under DC 5243 based on IVDS, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (1). Under the new criteria, Code 5243 is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; Code 5242 is assigned for all other disc diagnoses As will be discussed below, the Board concludes that the Veteran does not have a diagnosis of IVDS. The regulatory changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021 regulations is not required. Under the General Rating Formula for Diseases and Injuries of the Spine a 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the entire thoracolumbar spine not greater than 120 degrees; or, if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. Note (2): (see also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80 (1997). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. During the course of the appeal, the Veteran underwent numerous VA examinations which the Board previously determined were inadequate insofar as the examiners did not estimate range of motion during flare-ups or on passive and non-passive weight bearing; however, the Board will consider other pertinent findings from those examinations. On VA examination in November 2012, the Veteran reported that his back disability has progressively worsened since service. Range of motion (ROM) testing showed forward flexion to 70 degrees with a combined ROM of 205 degrees. The Veteran was diagnosed with degenerative disc disease (DDD) involving L4-L5; however, the examiner also indicated that the Veteran did not have IVDS and there was no evidence of incapacitating episodes. The Veteran was not found to have ankylosis that limited his ROM. The examiner noted that the Veteran's report of being completely incapacitated, having very limited movement and no bending during flare ups. The examiner also opined that his back disability functionally impaired the Veteran's ability to work as difficulty in bending and his mobility is restricted when he has flare-ups of low back pain. On VA examination in December 2016, the Veteran reported the effects of his back disability as a constant dull aching lower back pain that increased to a more throbbing excruciating pain that is aggravated by lifting anything more than 5 pounds or bending forward or backwards. Prolonged standing sitting causes pain and stiffness. He also experienced radiating pain and tingling bilaterally that starts at his hips and goes down to his knees then to his feet. Initial ROM testing showed for forward flexion to 60 degrees with a combined ROM of 95 degrees. The Veteran was not found to have ankylosis. The examiner diagnosed IVDS that required episodes of bedrest having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The examiner did not provide a ROM estimate the Veteran would experience during flare-ups. The examiner did report that the Veteran's back disability is not being able to do certain activates. The examiner provided examples of Veteran was no longer able to visit the Arlington Cemetery and put wreaths on the graves of his friends or use his pool for the previous three years due to his back condition. Pursuant to the Board's August 2017 remand, the Veteran was given a VA examination in November 2018. The examination only provided an initial ROM of forward flexion to 90 degrees with a combined ROM of 210 degrees. The examiner reported that the Veteran did not have flare-ups or any radiculopathy. The examiner also reported that the Veteran did not experience pain with weight bearing. The examiner said the Veteran did not have IVDS. The Veteran was given a VA examination in December 2019. Initial ROM testing showed for forward flexion to 50 degrees with a combined ROM of 205 degrees. After three repetitions, the Veteran's ROM was forward flexion to 40 degrees with a combined ROM of 140 degrees. The examiner noted that the Veteran experienced flare-ups and estimated his ROM during flare-ups as the same as repetitive testing. The examiner did not find any ankylosis but did note that the Veteran had radiculopathy involving both the femoral and sciatic nerve roots. The examiner opined that the Veteran's back disability caused the functional impairment of being limited in distance walking, prolonged standing, prolonged sitting, lifting and carrying, pushing and pulling. The examiner opined that there was no objective evidence of pain on non-weight bearing but then opined that passive ROM testing cannot be performed or is not medically appropriate without providing a reason why. The examiner said the Veteran did not have IVDS. Pursuant to the Board's June 2020 remand, the Veteran was given a VA examination in December 2020. The Veteran reported to the examiner that he has to rest on his back due to the pain and that cold weather can limit his ROM. During flare-ups, the Veteran stated that his pain can get to 10 out of 10 and that he would require Percocet for the pain. Initial ROM testing showed for forward flexion to 25 degrees with a combined ROM of 120 degrees. After three repetitions, the Veteran's ROM was forward flexion to 20 degrees with a combined ROM of 95 degrees. The examiner opined that the ROM obtained after repetitive use would be the same during flare-ups. The examiner said the Veteran did not have IVDS. The examiner found that the Veteran had bilateral lower extremity radiculopathy affecting both the femoral and sciatic nerve roots. The examiner found that the Veteran does have pain during non-weight bearing, but passive weight bearing could not be performed or is not medically appropriate without providing a reason why. As a result, that examination includes inadequacies Pursuant to the Board's February 2021 and July 2021 remands, the Veteran was given a VA examinations in April 2021 and July 2021. The February 2021 examination provided ROM but stated that passive ROM was not performed because testing may cause the Veteran severe pain or risk of further injury. However, the examination report also notes there was no evidence of pain on weight-bearing, non-weight-bearing, passive, or active motion. No further explanation was provided. The examiner noted the Veteran was not diagnosed with IVDS. During the July 2021 VA examination the Veteran reported to the examination but was unable to perform test because he is afraid that because of his neck pain, and movement of his low back would exacerbate his low back and neck pain. The July 2021 examiner noted that the Veteran still experiences flare-ups and estimated his ROM during flareups to be forward flexion to 20 degrees with a combined ROM of 65 degrees and was positive for radiculopathy affecting the sciatic nerve root for his bilateral lower extremities. The Veteran did not have ankylosis despite being unable to perform ROM testing because he was afraid that his neck pain, and movement of his low back would exacerbate his low back and neck pain. The examiner said the Veteran did not have IVDS. The findings of the VA examinations do not support an increase, but the Board had previously determined that the examinations were inadequate because they did not include all information necessary to decide the claims. Although some of the examiners prior to July 2021 did attempt to quantify the additional loss of motion due to pain or flare-ups, they did not adequately identify the loss of ROM during passive and non-weightbearing conditions as directed by Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, Board affords the examinations dated prior to July 2021 limited probative value and finds the July 2021 examination more probative in describing the Veteran's disability picture. Resolving all doubt to the benefit of the Veteran, the Board finds that prior to December 2, 2020, the date of the VA examination, the Veteran is entitled to 40 percent disability rating for his back. The Board finds the Veteran's reporting to the November 2012 VA examiner that when flare-ups occur, he is completely incapacitated and has very limited movement and no bending credible, competent and probative that the Veteran's ROM is extremely limited during flare-ups. Furthermore, the previous VA examinations have been determined to be inadequate by previous Board decisions and inconsistent at best in assessing the severity of the Veteran's back disability during flare-ups. Although the December 2016 examiner indicated the Veteran had IVDS, none of the VA examinations before or after that date confirmed the diagnosis. The Veteran has nerve root involvement and is separately compensated for related neurological impairment; however, consideration of a rating under the criteria for IVDS is not warranted. A rating higher than 40 percent is not warranted as the Veteran did not have ankylosis at any time during the period on appeal. 38 C.F.R. § 4.71a, DC 5237. In summary, resolving all reasonable doubt in the Veteran's favor, prior to December 2, 2020, his degenerative disc disease at L4-L5 warrants a 40 percent rating, but no higher. A rating in excess of 40 percent after December 2, 2020, for degenerative disc disease at L4-L5 is denied. 2. Entitlement to an initial compensable evaluation for radiculopathy, sciatic nerve, left lower extremity, prior to December 23, 2016, and in excess of 40 percent thereafter 3. Entitlement to an initial compensable evaluation for radiculopathy, sciatic nerve, right lower extremity, prior to December 23, 2016, and in excess of 40 percent thereafter 4. Entitlement to an initial compensable evaluation for radiculopathy, femoral nerve, left lower extremity, prior to December 23, 2016, and in excess of 30 percent thereafter 5. Entitlement to an initial compensable evaluation for radiculopathy, femoral nerve, right lower extremity, prior to December 23, 2016, and in excess of 30 percent thereafter The Veteran's bilateral lower extremity radiculopathy involving the sciatic nerve is rated under 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, complete paralysis of the nerve (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost) is rated as 80 percent; a 60 percent disability rating is for severe incomplete paralysis with marked muscular atrophy. Disability ratings of 40 percent, 20 percent, and 10 percent are assignable for incomplete paralysis which is moderately-severe, moderate, or mild in degree. The Veteran's bilateral lower extremity radiculopathy involving the femoral nerve is rated under 38 C.F.R. § 4.124a, DC 8526. Under DC 8526, complete paralysis of the nerve (paralysis of quadriceps extensor muscles) warrants a 40 percent rating. Disability ratings of 30 percent, 20 percent, and 10 percent are assignable for incomplete paralysis which is severe, moderate, or mild in degree. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" with peripheral nerve injuries 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. When involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. Note preceding diagnostic codes. 38 C.F.R. § 4.124a. In a January 2017 rating decision, service connection was granted and separate ratings assigned for radiculopathy of both lower extremities affecting the sciatic and femoral nerve roots. The sciatic nerve root was rated at 40 percent and the femoral nerve root was rated at 30 percent, for each leg; effective the date of the December 23, 2016 VA examination. As the ratings for the lower extremity neurological manifestations are part of the service-connected back disability and have been pending for the entire appeal period, the question for the Board is whether the Veteran is entitled to a compensable ratings for bilateral lower extremity radiculopathy affecting both the sciatic and femoral nerve roots for the period prior to December 23, 2016. The Board finds that for the period prior to December 23, 2016, the Veteran is entitled to separate 10 percent ratings for the left and right extremity radiculopathy affecting the sciatic nerve root and separate 10 percent ratings for the left and right lower extremity radiculopathy affecting femoral nerve root. In a November 2013 VA treatment record the Veteran reported having back pain that radiates to his toes that the Veteran described as tingling. The Veteran also reported in a January 2014 VA treatment record, reported having pain that radiates down his posterior legs to his calves and also described pain that radiated to his left knee. The first VA examination to diagnose lower extremity radiculopathy was a December 2016 VA examination for the back. During that examination, the Veteran demonstrated a positive bilateral leg test and was found to have moderate intermittent pain, paresthesia and numbness to his bilateral lower extremities. The examiner described both the sciatic and femoral nerve roots as being affected and opined that the Veteran's radiculopathy was moderate in severity. The Veteran did not have any lower extremity muscle atrophy or foot drop. At his June 2017 Board hearing, the Veteran testified that his radiculopathy existed prior to being diagnosed in December 2016. The Veteran was also given VA examinations for his back in December 2019 and December 2020. Both VA examinations found that the Veteran had moderate bilateral lower extremity radiculopathy affecting both the sciatic and femoral nerve roots. The Veteran did not have any lower extremity muscle atrophy or foot drop. Pursuant to the Board's February 2021 remand, the Veteran was given a VA examination of his peripheral nerves in April 2021. The examiner opined that the Veteran had mild incomplete paralysis of his bilateral lower extremities affecting the sciatic nerve root. Muscular atrophy was not noted. The Veteran was also given a VA examination of the back in April 2021. During this examination, the examiner found that the Veteran had decreased sensory examination for his bilateral lower extremities for nerve roots from L2 to L5. The Veteran had a negative bilateral straight leg test and the examiner noted that the Veteran had mild intermittent pain and mild paresthesia and numbness. The examiner opined that the Veteran had bilateral lower extremity radiculopathy affecting both the femoral and sciatic nerve roots. The Veteran did not have any lower extremity muscle atrophy. A July 2021 VA examination for the back found that the Veteran had bilateral lower extremity radiculopathy affecting the sciatic nerve root. The examiner noted that the Veteran had a negative bilateral straight leg test and that he had mild intermittent pain and mild paresthesia to right lower extremity. The Veteran did not have any lower extremity muscle atrophy. The Board finds that for the period prior to December 23, 2016, separate 10 percent ratings are granted for the left sciatic, left femoral, right sciatic and right femoral nerve roots. Throughout the period on appeal, the Veteran has described having radiating pain down his legs to his calves and knees. Without objective evidence the Board is unable to assign a higher rating. However, the Board finds that the Veteran is entitled to the minimum compensable rating under DC's 8520 and 8526 under the provisions of 38 C.F.R. § 4.59. The minimum ratings for lower extremity radiculopathy affecting the sciatic nerve, DC 8520 and lower extremity radiculopathy affecting the femoral nerve, DC 85260 is 10 percent each. For the period beginning December 23, 2016, the Board finds that the criteria for a 60 percent rating for sciatic nerve involvement are not met or more closely approximated for either lower extremity. A 60 percent rating contemplates severe incomplete paralysis with marked muscular atrophy. There is no evidence of muscle atrophy or very high level of limitation of motor or reflex in either leg. For the period beginning December 23, 2016, the Board finds that the criteria for a higher, 40 percent rating are not met or more closely approximated for the femoral nerve impairment in either leg. The 40 percent rating is warranted for complete paralysis of the femoral nerve. There is no evidence for either lower extremity of complete paralysis of the quadriceps extensor muscles. Thus, a rating greater than 30 percent for severe incomplete paralysis is not warranted from December 23, 2016 for either extremity.. In summary, resolving all reasonable doubt in the Veteran's favor, prior to December 23, 2016, separate 10 percent ratings, but no higher, are warranted for left and right lower extremity radiculopathy affecting the sciatic nerve root and separate 10 percent ratings, but no higher, are warranted for left and right his Veteran's lower extremity radiculopathy affecting the femoral nerve. For the period after December 23, 2016, the preponderance of the evidence is against the claims for ratings in excess of 40 percent after for left and right lower extremity radiculopathy affecting the sciatic nerve roots and ratings in excess of 30 percent for the left and right lower extremity radiculopathy affecting the femoral nerve roots. 6. Entitlement to TDIU prior to December 23, 2016 VA will grant TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep 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). The central inquiry in a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose, 4 Vet. App. at 363. With the above decision, the Veteran's service-connected disabilities have a combined rating of 80 percent effective January 5, 2012 (beginning of appeal period). Thus, he meets the schedular criteria for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). His service-connected disabilities are posttraumatic stress disorder (PTSD); degenerative disc disease; bilateral lower extremity radiculopathy affecting the sciatic nerve; bilateral lower extremity radiculopathy affecting the femoral nerve; bilateral hearing loss; and tinnitus. The Veteran has submitted statements to VA throughout the pendency of his appeals that he is not interested in pursuing a TDIU claim but has not formally withdrawn the claim. Additionally, VA has attempted to obtain requisite information contained in a formal application for TDIU (VA 21-8940) from the Veteran. Despite multiple requests by VA for the Veteran to submit a TDIU application, to date no TDIU application from the Veteran has been received. The Board is unable to determine when the Veteran was last employed and his highest level of education. Thus, the Board finds that based on the evidence of record, the Veteran's service-connected disabilities do not preclude him from securing substantially gainful employment for the period prior to December 23, 2016. The claim for TDIU is denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.