Citation Nr: 21062948 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 10-36 467A DATE: October 12, 2021 ORDER Entitlement to an evaluation in excess of 10 percent prior to July 27, 2017, for a lumbar spine disability is denied. Entitlement to an evaluation in excess of 20 percent beginning July 27, 2017, for a lumbar spine disability is denied. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity is denied. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 3, 2018, is denied. Entitlement to a TDIU beginning January 3, 2018, is granted. FINDINGS OF FACT 1. Prior to July 27, 2017, the Veteran's lumbar spine disability manifested in chronic pain and slight limitation of motion, with flare-ups of increased pain after activity. 2. After July 27, 2017, the Veteran's lumbar spine disability manifested in limitation to, at most, 45 degrees in forward flexion during flare-ups. 3. Throughout the period on appeal, the Veteran's right lower extremity radiculopathy manifested primarily in intermittent pain, with no effect on strength or motor function of the extremity. 4. Throughout the period on appeal, the Veteran's left lower extremity radiculopathy manifested in intermittent aching pain and numbness. 5. Prior to January 3, 2018, the record reflects the Veteran was not precluded from securing or following substantially gainful occupation, including working full-time from January 2012 to January 2018. 6. Beginning January 3, 2018, the record reflects the Veteran's service-connected disabilities precluded him from securing and following substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent prior to July 27, 2017, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5242. 2. The criteria for an evaluation in excess of 20 percent beginning July 27, 2017, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5242. 3. The criteria for an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8520. 5. The criteria for a TDIU prior to January 2, 2018, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 6. The criteria for a TDIU beginning January 2, 2018, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from November 1994 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2015. This case was most recently before the Board in June 2021, when it was remanded for development. The case has been returned to the Board for further appellate review. A July 2021 rating decision granted service connection for radiculopathy of the left lower extremity associated with the lumbar spine disability, assigning a 10 percent rating with an effective date of July 1, 2021. Although this rating decision has not yet been appealed, the Board finds that the rating for service-connected radiculopathy of the left lower extremity is part and parcel of the claim for a higher disability rating for the service-connected lumbar spine disability. See 38 C.F.R. § 4.71a, General Rating for Diseases and Injuries of the Spine, Note 1. Therefore, the Board will consider the evaluation of the radiculopathy of the left lower extremity in conjunction with the evaluation of the lumbar spine disability that was appealed from the February 2010 rating decision noted above. Increased Rating Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to an evaluation in excess of 10 percent prior to July 27, 2017, and in excess of 20 percent thereafter for a lumbar spine disability For his lumbar spine disability, the Veteran is currently in receipt of a 20 percent disability rating under Diagnostic Code (DC) 5242 effective July 27, 2017, and a 10 percent rating prior to that date. Spine disabilities are typically rated under the same general formula, except for intervertebral disc syndrome (IVDS), which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5235-5243. Certain changes to the musculoskeletal rating criteria went into effect on February 7, 2021, including to the diagnostic code relevant to IVDS. This code now requires there be disc herniation with compression and/or irritation of the adjacent nerve root. The rating criteria formula remained the same. The Board notes no changes were made to the General Rating Formula for Diseases or Injuries of the Spine or associated diagnostic codes. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent rating for a lumbar spine disability is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. All of these evaluations under the general formula for rating spine injuries consider the disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, a finding of which must be supported by adequate pathology and evidenced by visible behavior on motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability also include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, VA must consider the provisions of 38 C.F.R. § 4.40 and § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-38 (2011). The Veteran's VA and private treatment records reflect ongoing complaints of back pain throughout the period on appeal. The Board acknowledges these complaints, and only recites evidence below pertaining to treatment for the lumbar spine disability that reflects functional limitation or symptoms other than pain. In the Veteran's claim for an increase, in October 2009, he reported that his back "cracks and pops constantly" and that he experienced chronic back pain. In February 2010, the Veteran reported to his VA primary care physician that he experienced constant low back pain that worsened with activity, and muscle spasms in the low back. In March 2010, the Veteran reported having had a private MRI that revealed scoliosis; this private MRI is not a part of the record. Later in March 2010, the Veteran began VA physical therapy for low back pain, which he described as aching, sore, and stiff, with increased pain after prolonged standing, sitting, or strenuous activity. The physical therapist noted the Veteran ambulated independently with no significant signs of unilateral antalgia or muscle guarding. The active range of motion was noted to be within functional limits. In August 2012, the Veteran was afforded a VA spine examination, at which he reported that he could hear cracking and popping in his back, and that his constant back pain required him to shift positions a lot to get comfortable. He reported muscle spasms after physical activity, and difficulty bending down. The Veteran did not report experiencing flare-ups. The initial range of motion was measured to be 90 degrees in flexion; 30 degrees in extension; 25 degrees in left and right lateral flexion; and 30 degrees in left and right lateral rotation. Pain was not noted on the examination, and the range of motion remained the same after three repetitions. The examiner noted tenderness over the middle lumbar area and the right sacroiliac joint. Muscle spasm and guarding were not noted upon examination, and strength and reflex testing were all normal. IVDS was identified, but the examiner noted no incapacitating episodes in the prior 12 months. The examiner noted the Veteran did not demonstrate difficulty bending down to pick up a pen from the floor. An x ray performed in July 2012 was reviewed; no notation of scoliosis was made. In November 2013, the Veteran requested and was issued a back brace to help with the symptoms of his lumbar spine disability. In November 2014, the Veteran sought treatment for a flare-up of back pain and was prescribed physical therapy. At the first session, he reported an acute flare-up of pain from bending over to scrape something off the floor. He also reported receiving an injection in his back that helped the pain at first but was wearing off; the Board notes the Veteran's private treatment records reflect that he continued to receive such injections periodically throughout the period on appeal. The VA physical therapist noted limitation in mobility of the lumbar spine, but did not record measurements taken with a goniometer. By December 2014, the physical therapist noted the pain level remained the same but the active range of motion had increased. In September 2016, the Veteran attended another VA examination, at which he reported that he occasionally wears a back brace for support and tries to do back exercises when he has the time. The Veteran reported having trouble bending and sometimes experiencing difficulty putting on his pants. He also described flare-ups as a worsening of the back pain after working out or moving in a certain way; he did not describe how frequently the flare-ups occur or how long they last. The Board previously found the range of motion measurements in this examination to be inadequate, as the examiner did not note whether measurements were made in active or passive motion, or in weight-bearing or non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the Board will not consider range of motion evidence from this examination. Neither muscle spasm nor guarding was noted, and strength and reflex testing were all normal. IVDS was not diagnosed. The examiner opined that the Veteran's lumbar spine disability was very mild, based on the physical examination, including direct visualization and palpation of the spine during flexion, and imaging available in the record. The examiner also opined that the reported diagnosis of scoliosis was inaccurate, as the imaging and clinical findings from the examination did not indicate irregular curvature of the spine. In July 2017, the Veteran attended another VA examination, at which he reported chronic back pain that worsens when he "overdo[es] it." The Veteran did not describe how frequently flare-ups occur or how long they last. The range of motion of the thoracolumbar spine was measured to be 90 degrees in flexion; 30 degrees in extension; 25 degrees in left and right lateral flexion; and 30 degrees in left and right lateral rotation. Pain was noted in left and right lateral flexion, but was not noted to result in functional loss. After three repetitions, the range of motion remained the same. The Board previously found that the examiner did not adequately assess the Veteran's functional ability during flare-ups, see Sharp v. Shulkin, 29 Vet. App. 26 (2017); therefore, the Board will only consider initial range of motion evidence from this examination. The examiner did not note guarding or muscle spasm, and muscle strength and reflex testing were all normal. IVDS was not diagnosed. Also in July 2017, the Veteran began a course of physical therapy at VA to treat a flare-up of low back pain after moving furniture. He was noted to be slow with flexion and extension but able to perform these ranges of motion. The physical therapist noted being unable to appreciate abnormal curvature. In March 2018, the Veteran reported at a VA chronic disease management consultation that he walks five miles a day. In April 2019, the Veteran attended another VA examination, at which he reported back pain, fatigue, tenderness, weakness, and soreness. The Veteran reported limited mobility, difficulty turning to either side, and trouble bending, squatting, lifting, and sitting for prolonged periods. The Veteran reported that flare-ups could occur at any time, night or day, after walking, sitting, or standing for prolonged periods or lifting heavy objects. He described them as moderate to severe, but did not describe whether the flare-ups entailed symptoms beyond the increased pain reported at the September 2016 and July 2017 examinations. The initial range of motion of the thoracolumbar spine was measured to be 60 degrees in flexion; 20 degrees in extension; 25 degrees in right lateral flexion; 20 degrees in left lateral flexion; and 30 degrees in left and right lateral rotation. Pain was noted in all ranges of motion, and was noted as the cause the limitation of range of motion. After three repetitions, the range of motion remained the same. The examiner noted that pain would increase after repeated use over time and during flare-ups, but estimated that the range of motion would be approximately the same. The examiner noted muscle spasm that did not result in abnormal gait or spinal contour. Muscle strength and reflex testing were all normal. IVDS was not diagnosed, and ankylosis was not noted. The examiner noted occasional use of a back brace. In July 2020, the Veteran reported chronic low back pain to his VA primary care physician, reporting being concerned with limited flexion and extension. He also reported occasional difficulty in complete bending. The Veteran attended a VA examination in January 2021; however, the Board will not consider the evidence generated, as the examination was found to be inconsistent with other evidence of record to such an extent that a doubt was raised as to the credibility the findings. In April 2021, the Veteran attended private physical therapy, where he reported increased pain with bending over. The physical therapist noted decreased strength, stability, muscle length, balance, and function. The therapist noted decreased torso rotation, excessive lumbar lordosis in standing, and decreased gait speed and stride length. In June 2021, the Veteran reported that an intraspinal injection significantly improved his low back pain. In July 2021, the Veteran attended another VA examination, at which he reported tenderness and burning in his low back, as well as aching pain that travels down to the legs. He also reported flare-ups of throbbing pain, aching, and a sensation of his bones popping and grinding. The Veteran reported that these flare-ups occur approximately four times a day and last 45 minutes, and that during such flare-ups he feels he is unable to stand or walk. The initial range of motion was measured to be 70 degrees in forward flexion and 20 degrees each in extension and right and left lateral flexion and rotation, in both active and passive range of motion. Pain was noted in all ranges of motion, and the Veteran reported this decreased range of motion contributed to an inability to stand, walk, or sit in the same position for more than 45 minutes and to run or jog at all. After three repetitions, the range of motion remained the same. The examiner estimated limitation to 60 degrees in forward flexion after repeated use over time, and 45 degrees during flare-ups, as well as limitation to 10 degrees each in extension and right and left lateral flexion and rotation during flare-ups. There was no guarding or muscle spasm noted, and muscle strength and reflex testing were all normal. IVDS was not diagnosed, and ankylosis was not noted. The examiner noted occasional use of a back brace, cane, TENS unit, and lumbar pillow to alleviate lower back symptoms. After careful review of the evidence of record, the Board finds that an increased evaluation is not warranted at any point during the period on appeal. First, prior to July 27, 2017, an evaluation in excess of 10 percent is not warranted. Based on the general rating formula, a higher evaluation is not warranted unless there is forward flexion of 60 degrees or less; a combined range of motion of 120 degrees or less; or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. The only credible range of motion measurements from this period indicate forward flexion of 90 degrees and a combined range of motion of 230 degrees. Therefore, an increased evaluation based on limitation of the range of motion is not warranted. Further, although the Veteran reported having a diagnosis of scoliosis, there is no medical corroboration of this report, and the medical evidence of record tends to contradict the report. Regardless, any scoliosis of the Veteran's lumbar spine is not associated with muscle spasm or guarding in the record; the only time during this period the Veteran reported muscle spasms was at the August 2012 examination, and there is no notation of an abnormal spinal contour at this examination. Therefore, an increased evaluation based on abnormal spinal contour is not warranted. Next, the Board has considered whether an increased evaluation is merited due to functional limitation caused by the lumbar spine disability. See DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. at 37-38. The Veteran described flare-ups of the disability primarily as an increase in pain; where he also reported some limitation of mobility of lumbar spine, in November 2014, this was not noted to restrict his motion such that it approximated the criteria for the next higher evaluation, that is, to less than 60 degrees. The Board also notes that the other symptoms the Veteran reported in particular, muscle spasms and "cracking and popping" are not reflected in the record to affect the Veteran's range of motion, gait, or functional ability. For these reasons, the Board finds that no greater than a 10 percent evaluation is warranted for the lumbar spine disability prior to July 27, 2017. Finally, the Board also considered rating the lumbar spine disability during this period using the IVDS criteria based on the identification of IVDS in the August 2012 VA examination. However, this does not render a higher evaluation, as there is no evidence of incapacitating episodes requiring physician-prescribed bedrest. Next, for the period beginning July 27, 2017, an evaluation in excess of 20 percent is not warranted. An evaluation greater than 20 percent is described by criteria involving forward flexion of the thoracolumbar spine of 30 degrees or less, or ankylosis of the spine. The Veteran's lumbar spine was measured in forward flexion of 90 degrees, 60 degrees, and 70 degrees at the examinations during this portion of the appeal period, with an estimate of 60 degrees after repeated use and 45 degrees during flare-ups at the July 2021 examination. Ankylosis was never noted. Therefore, based on the criteria alone, an evaluation in excess of 20 percent is not warranted. As for functional limitation, throughout this later part of the period on appeal, the Veteran continued to describe flare-ups as primarily manifesting in increased pain. The April 2019 VA examiner opined that the Veteran would experience increased pain during a flare-up and after repeated use, but that the range of motion would be approximately the same. Where a reduction in range of motion due to the pain of a flare-up was estimated, at the July 2021 examination, the examiner opined the Veteran would be able to flex to 45 degrees, which does not closely approximate the criteria for the next higher evaluation. Finally, the Board has also considered whether the Veteran's reports at the July 2021 examination of feeling unable to stand or walk during severe flare-ups are indicative of functional ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (criteria in general rating formula for the spine describing ankylosis can be met with evidence of functional equivalent of ankylosis during a flare). Although the Veteran reported an inability to stand or walk during these frequent flare-ups, the other evidence of record near to the examination in time does not reflect flare-ups of the same severity. The examiner, based on the Veteran's reports and the physical examination that day, estimated that the Veteran would be able to flex forward to 45 degrees during a flare-up. The Veteran's private medical records do not reflect complaints of four daily episodes of back pain so severe that he is restricted to lying down until the symptoms pass; on the contrary, a June 2021 private progress note indicated a report from the Veteran that his low back pain had significantly improved, with no mention of flare-ups. Further, the Veteran's report that he is unable to stand or walk during flare-ups indicate that he either sits or lies down during the flare-ups; while the Board acknowledges these periods of increased pain, it cannot be said that these flare-ups are the functional equivalent of ankylosis which is when the spine is in fixed position. Therefore, the Board finds that the Veteran's reports at the July 2021 examination are not tantamount to functional ankylosis. For these reasons, the Board finds that an increased evaluation is not appropriate at any point during the appeal period for the lumbar spine disability. 2. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right and left lower extremities The Veteran is currently in receipt of a 10 percent evaluation effective March 6, 2019, for radiculopathy of the right lower extremity and a 10 percent evaluation effective July 1, 2021, for radiculopathy of the left lower extremity. Both evaluations are assigned under DC 8520, which pertains to the sciatic nerve. Under DC 8520, incomplete paralysis of the nerve is rated 10 percent when mild, 20 percent when moderate, 40 percent when moderately severe, and 60 percent when severe, with marked muscular atrophy. Complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of the knee weakened or, very rarely, lost warrants an 80 percent rating. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "mild," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, 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 C.F.R. §§ 4.2, 4.6. Here, in addition to the specific instances noted below, the Veteran's VA and private treatment records indicate a prescription for medication to treat radicular pain. Private treatment records from March and April 2019 indicate complaints of lumbar pain with radiation to the right lateral thigh, and a diagnosis of right-sided sciatica. Private treatment records from June 2021 also indicate treatment for intermittent lumbar pain with radiation to the right lateral thigh. There are no notations in these records of any radicular symptoms in the left lower extremity. At the July 2019 VA spine examination, the examiner noted moderate constant radicular pain and mild paresthesias in the right lower extremity only. The muscle strength, reflex, and sensory examinations were all normal, and the straight leg raising test was negative, indicating the pain did not radiate below the knee. The examiner found no other signs or symptoms of radiculopathy and no other neurologic abnormalities, and characterized the radiculopathy in the right lower extremity as mild. As noted above, the Board will not consider the evidence generated at the January 2021 VA examination, as the examination was found to be inconsistent with other evidence of record such that a doubt was raised as to the credibility the findings. In March 2021, the Veteran reported occasional right leg pain after activity, and denied experiencing any weakness in the leg. Motor function in both legs was noted to be normal, as was light touch sensation. In April 2021, the Veteran reported lower back pain and radiating right hip and leg pain, numbness, and tingling. He did not complain of any left-sided radicular symptoms. At the July 2021 VA spine examination, the Veteran reported aching pain that traveled down his legs. The examiner noted moderate intermittent pain and moderate numbness in both lower extremities. Muscle strength, reflex, and sensory testing was all normal in both lower extremities. The examiner found no other signs or symptoms of radiculopathy and no other neurologic abnormalities. Right Lower Extremity The Board finds that an increase is not warranted for the evaluation of the Veteran's right lower extremity radiculopathy. Throughout the appeal period, the Veteran reported radicular symptoms of radiating pain, either intermittent or constant, and mild to moderate numbness and tingling in the right leg. In March 2021, he specifically denied experiencing weakness in the right leg, even after activity which increased his radicular pain. The sensory testing was always noted to be normal, both at the VA examinations and in the Veteran's private treatment records, as was the muscle strength and reflex testing. For these reasons, the Board finds the Veteran's right lower extremity radiculopathy to be wholly sensory in nature. The rating schedule indicates that incomplete paralysis resulting in wholly sensory symptoms should be rated as mild or, at most, moderate. 38 C.F.R. § 4.124a. The Board finds that the Veteran's right lower extremity radiculopathy is appropriately rated as mild. Although he reported constant radiating pain at the July 2019 examination, throughout the rest of the appeal period, the Veteran reported intermittent radiating pain, including when seeking treatment for low back pain from his private physician. Further, the Veteran did not describe the pain as severe anywhere in the record. Given the Veteran's reports of radiating pain, the Board finds that the radiculopathy of the right lower extremity has been mild in severity throughout the period on appeal, and that no greater than a 10 percent evaluation is warranted. Left Lower Extremity Likewise, the Board finds that an increase is not warranted for the radiculopathy of the left lower extremity. The only evidence from the period on appeal is the July 2021 VA examination, at which the Veteran reported aching intermittent pain radiating down his legs and also endorsed moderate numbness. There is no evidence of left leg weakness or other symptoms of radiculopathy affecting motor function in the left lower extremity, and the Veteran's reports do not describe severe pain interfering with function. Therefore, as the radiculopathy is wholly sensory and manifests in occasional aching pain and numbness, the Board finds that no greater than a 10 percent evaluation is warranted for the radiculopathy of the left lower extremity. TDIU 3. Entitlement to a TDIU prior to August 1, 2018 VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry 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). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). The Court has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Therefore, as the record reflects some evidence of unemployability, the Board will evaluate whether the Veteran is entitled to a TDIU as part of his appeal for an increased evaluation for the lumbar spine disability, which he initially claimed in October 2009. First, a July 2021 rating decision granted a TDIU effective August 1, 2018. The RO found that the service-connected persistent depressive disorder could reasonably be expected to preclude employment in occupations the Veteran was experienced to perform. The Board is in agreement with this assessment. However, the RO made the TDIU benefit effective on August 1, 2018, finding that this was the day following last date of the Veteran's full-time employment. Rather, the Veteran's employer verified the Veteran's report that he last worked as a full-time employee on January 2, 2018. Therefore, the Board finds the TDIU benefit should be granted effective January 3, 2018. Next, the record clearly reflects the Veteran worked full-time for a federal agency from January 24, 2012, to January 2, 2018. The Veteran reported and the employer verified that he worked for a federal agency as a customer service representative for 40 hours a week during this time period. The evidence therefore does not establish that the Veteran's employment from January 2012 to January 2, 2018, was marginal on either an income basis or facts-found basis. The Veteran's VA treatment records further indicate that the Veteran occasionally worked part-time as well during this period, either to supplement the full-time income or to make ends meet during furlough periods. The Board finds that the Veteran's full- and part-time employment from January 2012 to January 2018 indicate the Veteran was not precluded from engaging in substantially gainful employment during this period, and therefore a TDIU is not warranted from January 24, 2012, through January 2, 2018. Lastly, for the period prior to January 24, 2012, the Veteran has not provided a detailed work history. However, his VA treatment records contain occasional reports of employment. In February 2010, the Veteran reported that he had been laid off on December 7, 2009, and that he was unemployed. On March 9, 2010, the Veteran reported that he was working part-time in an office job. On September 13, 2010, the Veteran reported working at a local bank branch; it is not clear in the record whether this is the same job as the office job reported in March of this year. On October 18, 2010, the Veteran reported working at a VA medical center. On October 13, 2011, the Veteran reported working as a medical clerk at a VA outpatient clinic since August 2011, and prior to that as a transport clerk at a different VA medical facility; in his Social Security disability application, the Veteran described these positions as 40 hours a week. In a February 2012 VA psychology consultation, which is after he began working full-time for the federal agency, he reported working part-time at the same local bank branch with a temp agency. Thus, it appears from the Veteran's reports that, with the exception of the period from December 7, 2009, to, at the latest, March 9, 2010, the Veteran was working at least part-time in at least one or more jobs at a time for the entire period prior to January 24, 2012. On his VA form 21-8940, the Veteran reported having four years of college. In February 2012, at a VA psychology consultation, the Veteran reported having a bachelor's degree in business administration. The Board finds that a TDIU is also not warranted for the period prior to January 24, 2012. The Board notes that there is no information in the record regarding the number of hours worked or amount of wages earned at any of these part-time jobs; however, it is apparent from the record that the Veteran was capable of working in office-type jobs, both in education and in physical ability. Although at various times in his VA treatment records the Veteran reported that he left these jobs due to his back condition or his mood disorder, elsewhere in the treatment records he reported resigning to spend more time with his wife or because he did not enjoy the work. The Board further notes that the Veteran reported gaining employment through a temp agency, which by their nature are jobs that are intended to last a short period of time. Regardless, the Veteran was able to maintain the temporary position at the bank from September 2010 and possibly even as early as March 2010 until at least February 2012, when he had already begun full-time employment with the federal agency. Further, the record reflects that, during the period the Veteran worked part-time at the bank, he also held another part-time position at one or more VA medical centers. This employment history indicates that the Veteran's service-connected disabilities were not the factor precluding the Veteran from securing or following substantially gainful employment, as he was able physically and emotionally to work two part-time jobs at the same time. For these reasons, the Board finds a TDIU is warranted beginning January 3, 2018, and is not warranted at any point prior to January 3, 2018. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.