Citation Nr: 21062999 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-24 038 DATE: October 12, 2021 ORDER Service connection for obstructive sleep apnea, to include as secondary to a lumbar spine disability, is denied. Service connection for a right hip disability, to include as secondary to a lumbar spine disability, is denied. Service connection for a right knee disability, to include as secondary to a lumbar spine disability, is denied. New and material evidence has not been received, and the appeal to reopen a claim of service connection for a pinched nerve in the cervical spine with headaches is denied. An initial compensable evaluation for shingles prior to February 23, 2018 is denied. An evaluation in excess of 30 percent for shingles from February 23, 2018 to August 12, 2020 is denied. An evaluation of 60 percent, but not in excess thereof, for shingles from August 12, 2020 is granted. An evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine is denied. An evaluation in excess of 10 percent for radiculopathy of the right lower extremity prior to February 23, 2018 is denied. An evaluation in excess of 10 percent for radiculopathy of the left lower extremity prior to February 23, 2018 is denied. An evaluation in excess of 20 percent for radiculopathy of the right lower extremity from February 23, 2018 is denied. An evaluation in excess of 20 percent for radiculopathy of the left lower extremity from February 23, 2018 is denied. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) from May 15, 2014 to August 12, 2020 is granted. FINDINGS OF FACT 1. The Veteran's obstructive sleep apnea is not related to his lumbar spine disability or otherwise related to service. 2. The Veteran's right hip disability is not related to his lumbar spine disability, is not otherwise related to service, and did not manifest within one year of separation from service. 3. The Veteran's right knee disability is not related to his lumbar spine disability, is not otherwise related to service, and did not manifest within one year of separation from service. 4. Evidence received since the December 2007 final rating decision is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial of service connection for a pinched nerve in the cervical spine. 5. Prior to February 23, 2018, the Veteran's shingles did not affect at least 5 percent of the body or exposed areas and was not productive of symptoms treated by systemic therapy. 6. From February 23, 2018 to August 12, 2020, the Veteran's shingles did not affect at least 40 percent of the body or exposed areas and was not productive of symptoms treated by constant or near-constant systemic therapy. 7. From August 12, 2020, the Veteran's shingles was treated with constant systemic therapy. 8. The Veteran's degenerative arthritis of the lumbar spine is not productive of incapacitating episodes or unfavorable ankylosis of the entire thoracolumbar spine. 9. Prior to February 23, 2018, the Veteran's radiculopathy of the right lower extremity was not productive of the equivalent of complete paralysis of the sciatic nerve or of incomplete paralysis that is moderate, moderately severe, or severe. 10. Prior to February 23, 2018, the Veteran's radiculopathy of the left lower extremity was not productive of the equivalent of complete paralysis of the sciatic nerve or of incomplete paralysis that is moderate, moderately severe, or severe. 11. From February 23, 2018, the Veteran's radiculopathy of the right lower extremity was not productive of the equivalent of complete paralysis of the sciatic nerve or of incomplete paralysis that is moderately severe or severe. 12. From February 23, 2018, the Veteran's radiculopathy of the left lower extremity was not productive of the equivalent of complete paralysis of the sciatic nerve or of incomplete paralysis that is moderately severe or severe. 13. From May 15, 2014 to August 12, 2020, the Veteran's service-connected disabilities have rendered him unemployable or unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for obstructive sleep apnea, to include as secondary to a lumbar spine disability, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. The criteria for service connection for a right hip disability, to include as secondary to a lumbar spine disability, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 3. The criteria for service connection for a right knee disability, to include as secondary to a lumbar spine disability, are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 4. Evidence received since a December 2007 final rating decision is not new and material, and reopening of the Veteran's claim of service connection for a pinched nerve in the cervical spine with headaches is therefore not warranted. 38 U.S.C. §§ 5108, 7105(c) (2018); 38 C.F.R. §§ 3.156(a), 20.1103 (2020). 5. The criteria for an initial compensable evaluation for shingles prior to February 23, 2018 are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2020). 6. The criteria for an evaluation in excess of 30 percent for shingles from February 23, 2018 to August 12, 2020 are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2020). 7. The criteria for an evaluation of 60 percent, but not in excess thereof, for shingles from August 12, 2020 are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2020). 8. The criteria for an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). 9. The criteria for an evaluation in excess of 10 percent for radiculopathy of the right lower extremity prior to February 23, 2018 are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). 10. The criteria for an evaluation in excess of 10 percent for radiculopathy of the left lower extremity prior to February 23, 2018 are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). 11. The criteria for an evaluation in excess of 20 percent for radiculopathy of the right lower extremity from February 23, 2018 are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). 12. The criteria for an evaluation in excess of 20 percent for radiculopathy of the left lower extremity from February 23, 2018 are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). 13. The criteria for a TDIU from May 15, 2014 to August 12, 2020 are met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to November 1991. This appeal is before the Board of Veterans' Appeals (Board) from September 2014 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to a lumbar spine disability The Veteran claims service connection for sleep apnea secondary to his lumbar spine disability. Service treatment records do not reflect any symptoms of or treatment for sleep apnea. VA treatment records reflect that in February 2013 the Veteran reported fatigue and was referred for a sleep study. At an April 2013 sleep consultation, he reported loud snoring, periods of sleep apnea for one year, and waking up gasping. He was diagnosed with witnessed sleep apnea and snoring with daytime somnolence. In August 2013 he was diagnosed with obstructive sleep apnea after a portable sleep study. The Veteran underwent a VA examination in September 2014. He reported that sleep apnea began years ago. He was diagnosed with obstructive sleep apnea. The examiner opined that sleep apnea was not due to or the result of his lumbar spine disability. This opinion was based on the rationale that thorough review of current medical literature failed to support a causal relationship between obstructive sleep apnea and degenerative arthritis of the lumbar spine. In a statement received by VA in November 2014, the Veteran reported that his sleep apnea is caused by his back pain which prevents him from laying down. VA treatment records reflect that in May 2016 the Veteran underwent nasal surgery and afterwards had improved breathing. At his January 2021 hearing, the Veteran reported that his doctors told him that he developed sleep apnea because he cannot sleep properly. He stated that he also had some problems with his nose which they fixed, but his sleep apnea remained. He stated that he was told that it developed because he was unable to sleep properly due to his spine. The Board finds that the evidence weighs against a finding that the Veteran's obstructive sleep apnea is related to his lumbar spine disability or is otherwise related to service. The September 2014 VA examiner gave a highly probative opinion explaining that a lumbar spine disability is unrelated to his sleep apnea. There is no medical evidence to contradict this opinion. While the Veteran states that his doctors informed him that his sleep apnea was caused by his lumbar spine disability, the Board does not find this report to be credible. His medical records do not reflect any such relationship. While his back disability no doubt causes difficulty sleeping that contributes to the daytime somnolence that is a symptom of his sleep apnea, there is no explanation of how the back disability would have any effect on the obstruction of breathing that constitutes his diagnosis. Furthermore, there is no indication in the record of any alternative relationship to service. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's obstructive sleep apnea is related to his lumbar spine disability or is otherwise related to service, and service connection is therefore denied. 2. Entitlement to service connection for a right hip disability, to include as secondary to a lumbar spine disability 3. Entitlement to service connection for a right knee disability, to include as secondary to a lumbar spine disability The Veteran claims service connection for a right hip disability and a right knee disability, both secondary to his lumbar spine disability. Service treatment records do not reflect any symptoms of or treatment for a right hip disability or a right knee disability. VA treatment records reflect that in August 2013 the Veteran reported pain in his right knee and pain and swelling in his right hip. He reported that his knee had been giving out on him and that his hip swelling began four days prior. He denied any recent injury. September 2013 x-rays showed mild degenerative joint disease in the right hip and right knee. He was referred for outside physical therapy which he underwent beginning in March 2014. In May 2014 he reported weakness and pain in his right hip and right knee, though this was noted as radiating pain from his back disability. The Veteran underwent VA examinations in September 2014. With respect to his right hip, he reported that a few years prior he started noticing pain and swelling on the outside of his hip and was diagnosed with bursitis. With respect to his right knee, he reported that nine months prior he started noticing pain, popping, and giving way in his right knee. He was diagnosed with mild degenerative joint disease of the right hip and the right knee. The examiner opined that the disabilities were less likely than not related to his lumbar spine disability. This opinion was based on the rationale that current medical literature supported that mild degenerative changes of the right hip and right knee were more likely secondary to expected aging as commonly seen in the Veteran's age group, accelerated or aggravated by his being overweight. In his October 2014 notice of disagreement, the Veteran stated that his doctor had shown that his knee and hip disabilities were a direct result of his spine. At his January 2021 hearing, the Veteran reported that he developed bursitis of the hip because he was unable to walk correctly due to his back disability. He stated that he had been told that it was nerve damage. The Board finds that the evidence weighs against a finding that the Veteran's right hip and right knee disabilities are related to his lumbar spine disability, are otherwise related to service, or manifested within one year of separation from service. The September 2014 VA examiner gave highly probative opinions explaining that his knee and hip arthritis was unrelated to his lumbar spine disability. There is no medical evidence to contradict this opinion. While the Veteran states that his doctors informed him that his knee and hip disabilities were caused by his lumbar spine disability, the Board does not find this report to be credible. His medical records do not reflect any such relationship. Although his back disability causes pain in his right lower extremity, this pain is already compensated for in his rating for radiculopathy. Indeed, his treatment records routinely attribute reported right leg pain to his radiculopathy of the right lower extremity. This is consistent with the Veteran's report that he was informed the relationship was based on nerve damage. While the records confirm this relationship for which he is already compensated, there is no indication of a medical relationship between his lumbar spine disability and the separate disabilities of arthritis of the right hip and right knee. Furthermore, there is no indication in the record of any alternative relationship to service or that the disabilities manifested within one year of separation from service. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's right hip and right knee disabilities are related to his lumbar spine disability, are otherwise related to service, or manifested within one year of separation from service. Service connection is therefore denied. 4. Whether new and material evidence has been received to reopen a claim of service connection for a pinched nerve in the cervical spine with headaches The Veteran seeks to reopen a previously denied claim of service connection for a neck disability. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Service connection for a pinched nerve in the cervical spine with headaches was originally denied in a December 2007 rating decision based on a finding that the evidence did not show that his disability was related to service or manifested within one year of separation from service. This finding was based on service treatment records showing a September 1989 concussion from a football game, private treatment records showing a post-service concussion in November 2005 with associated forehead laceration, private treatment records showing headaches and cervical radiculopathy in January 2007, and VA treatment records from October 2007 showing a history of chronic neck pain and a forehead scar. He neither appealed the denial for this issue nor submitted new and material evidence during the one-year appeal period, and the decision therefore became final as to this issue. Evidence received since the December 2007 final rating decision includes VA and private treatment records for neck pain that do not indicate any relationship to service or to a service-connected disability. Indeed, at a February 2008 VA physical therapy consultation, the Veteran denied injury to his neck, stating that his pain began 10 years prior and that he was unsure of the cause. In his August 2013 claim to reopen, he stated that his neck damage stemmed from in-service injuries. In a May 2014 statement, he stated that his neck was injured on base in England. He is apparently under the impression that he was rated at 10 percent for this injury. In his October 2014 notice of disagreement, he stated that the pinched nerve was a result of an in-service injury playing football for his squadron. He again stated that he used to receive 10 percent for this disability. At his January 2021 hearing, the Veteran stated that he experienced an in-service head injury causing amnesia for three days. He stated that they did not look into pinched nerves back then. The Board finds that the evidence received since the December 2007 final rating decision is essentially cumulative of the evidence previously of record with regard to the basis for the prior denial. Specifically, the only additional evidence regarding a potential relationship to service are the Veteran's consistent reports that his neck disability began from an injury playing football while stationed in England. The December 2007 rating decision, however, specifically referred to his September 1989 concussion related to the football game. The Board therefore finds this evidence to be cumulative of prior evidence regarding a relationship to service, and the appeal to reopen the claim is therefore denied. Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 5. Entitlement to an initial compensable evaluation for shingles prior to February 23, 2018 6. Entitlement to an evaluation in excess of 30 percent for shingles from February 23, 2018 to August 12, 2020 7. Entitlement to an evaluation in excess of 30 percent for shingles from August 12, 2020 The Veteran claims increased ratings for shingles. The Veteran's disability is rated as analogous to dermatitis or eczema under 38 C.F.R. § 4.118, Diagnostic Code 7806. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Under the criteria prior to August 13, 2018 amendments, a noncompensable rating is warranted for less than 5 percent of the entire body or exposed areas affected, and no more than topical therapy required during the past 12 month period. A 10 percent rating is warranted for at least 5 percent but less than 20 percent of the entire body or exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12 month period. A 30 percent rating is warranted for 20 to 40 percent of the entire body or exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more but not constantly during the past 12 month period. A 60 percent rating is warranted for more than 40 percent of the entire body or exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12 month period. Effective August 13, 2018, disabilities under Diagnostic Code 7806 are rated under a new General Rating Formula for the Skin. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and characteristic lesions involving less than 5 percent of the entire body or exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Under both the prior and amended regulations, the disability may alternatively be rated as scarring if scarring is the predominant disability. Under the earlier criteria, systemic therapy is defined as therapy that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). In his August 2013 claim, the Veteran reported that he was currently suffering from shingles. The Veteran underwent a VA examination in September 2014. He reported that he had recurrent shingles since active duty. He stated that one year prior he got rashes in his pelvis and groin area. He stated that he currently did conservative treatment of ice or heat. The examiner noted no topical or systemic treatment in the prior 12 months. There were no current rashes apart from three raised erythematous nontender papules, each less than one millimeter and covering less than five percent of total body area and no exposed body area. The examiner found no functional impact. In his October 2014 notice of disagreement, the Veteran reported that his shingles on his genitals itched and hurt and that ointment provided no relief. The Veteran underwent another VA examination on February 23, 2018. He reported flare-ups every two weeks lasting 5-7 days. During a flare-up he described painful, itchy, burning red blisters in groups in the groin and sides of the creases in the groin area. He reported use of topical prescribed non-VA cream. The examiner noted scarring that was neither painful nor unstable and totaled less than one square centimeter in area. The examiner described topical treatment used six weeks or more over the prior year but not constantly. There were no currently visible skin conditions. His diagnosis of shingles was continued. VA treatment records reflect that on August 12, 2020, the Veteran was prescribed valacyclovir for his shingles, to be taken daily. Subsequent VA treatment records showed that the prescription continued through at least March 2021. At his January 2021 hearing, the Veteran reported that his shingles had worsened. He stated that the condition has spread in his groin around to his buttocks. He reported use of triamcinolone, though he was unsure if it had any effect. The Veteran underwent another VA examination in March 2021. He reported flare-ups of shingles in the groin areas once to twice per month, lasting about a week and causing burning sensation. He reported use of a topical cream for six or more weeks during the past year, but not constant. Physical examination showed no current rashes. He was diagnosed with shingles with no functional impact. Prior to February 23, 2018, the Board finds that a compensable evaluation for the Veteran's shingles is not warranted. Compensable ratings are available for at least 5 percent of the body or exposed areas affected or for symptoms treated by systemic therapy. The evidence weighs against such symptoms. At his September 2014 VA examination, he did not have 5 percent of his body or exposed areas affected, and he denied topical or systemic therapy in the prior year. In his October 2014 notice of disagreement, he described the use of ointment, but there is no indication in the record that this ointment was a systemic treatment, and in any event the Veteran stated that the ointment had no effect. For these reasons, the Board finds that a compensable rating is not warranted prior to February 23, 2018. From February 23, 2018 to August 12, 2020, the Board finds that an evaluation in excess of 30 percent for the Veteran's shingles is not warranted. Higher ratings are available for more than 40 percent of the entire body or exposed areas affected, or constant or near-constant systemic therapy. The evidence weighs against such symptoms. There is no evidence that the Veteran's shingles affected more than 40 percent of his body or any exposed areas. At his February 2018 VA examination, the examiner noted treatment used six weeks or more over the prior year but not constantly. There is no evidence in the record to contradict this finding prior to August 12, 2020. For these reasons, the Board finds that an evaluation in excess of 30 percent for the Veteran's shingles is not warranted from February 23, 2018 to August 12, 2020. From August 12, 2020, the Board finds that a 60 percent evaluation, but not in excess thereof, is warranted for the Veteran's shingles. Such an evaluation is warranted for constant or near-constant systemic therapy. VA treatment records reflect that on August 12, 2020, the Veteran was prescribed daily valacyclovir to control his shingles. This antiviral medication is taken orally, and as such constitutes systemic therapy. Subsequent VA records indicate that the Veteran continued to fill his prescription continuously. As such, a 60 percent evaluation is warranted from August 12, 2020. As this is the maximum schedular evaluation absent scarring of the head, face or neck, a higher evaluation is not warranted. 8. Entitlement to an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine 9. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the right lower extremity prior to February 23, 2018 10. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the left lower extremity prior to February 23, 2018 11. Entitlement to an evaluation in excess of 20 percent for radiculopathy of the right lower extremity from February 23, 2018 12. Entitlement to an evaluation in excess of 20 percent for radiculopathy of the left lower extremity from February 23, 2018 The Veteran claims increased ratings for his lumbar spine disability and associated radiculopathies. The Veteran is currently in receipt of a 40 percent disability rating for his service-connected lumbar spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5243, intervertebral disc syndrome (IVDS). IVDS is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or under the Formula for Rating IVDS Based on Incapacitating Episodes ("IVDS Formula"), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See VBA Training Letter 02-04 (October 24, 2002). Under the General Formula, the Veteran's current 40 percent rating is assignable for forward flexion of the thoracolumbar spine 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Also under the General Formula, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. The Veteran is currently in receipt of ratings for radiculopathy of each of the lower extremities, manifested by paralysis of the sciatic nerve, evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this code, an evaluation of 10 percent is warranted for mild incomplete paralysis, an evaluation of 20 percent is warranted for moderate incomplete paralysis, an evaluation of 40 percent is warranted for moderately severe incomplete paralysis, an evaluation of 60 percent is warranted for severe incomplete paralysis with marked muscular atrophy, and an evaluation of 80 percent is warranted for complete paralysis. Complete paralysis of the sciatic nerve causes the foot to dangle and drop, with no active movement possible of the muscles below the knee, and with flexion of the knee weakened or (very rarely) lost. When involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating the peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. The next highest and maximum rating under this formula is a 60 percent rating warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the claimant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. With respect to disabilities of the lumbar spine, the February 2021 changes limited the circumstances under which a code for IVDS could be assigned and limited alternative criteria to degenerative or traumatic arthritis. The Board finds that there is no scenario under which the amended criteria could be more favorable to the Veteran, and as such will analyze his appeal under the criteria in effect prior to February 7, 2021. VA treatment records reflect that in May 2014 the Veteran presented to the emergency room reporting back pain that worsened that morning. His physician noted palpable spasms. A week later he again presented to the emergency room reporting increased chronic lower back pain radiating down to the right hip, knee, and foot. X-rays showed mild degenerative changes at L4-5 and L5-S1, stable compared to prior examination. At a June 2014 pain consultation, he reported low back pain with radiation to the bilateral legs, worse on the right. His physician noted a mild decrease in ranges of flexion, extension, lateral bend, and twisting bilaterally. He underwent an outpatient chronic pain rehabilitation program in August 2014 and September 2014. The Veteran underwent a VA examination in September 2014. He reported back pain with increasing intensity and frequency. He reported daily back spasm and stiffness. He reported radiation to the bilateral lower extremities with tingling and numbness. During flare-ups, he stated that he was stuck in bed due to pain. He reported regular use of a cane and rolling walker. Forward flexion was limited to 30 degrees with pain thereat. Extension was limited to 15 degrees with pain thereat. Lateral flexion was limited to 20 degrees with pain thereat bilaterally. Lateral rotation was limited to 25 degrees with pain thereat bilaterally. Repetitive testing did not lead to additional loss of range but led to functional loss with contributing factors of less movement than normal, weakened movement, and pain on movement. There was objective evidence of tenderness in the lower lumbar midline and bilateral lumbar paraspinal. There was muscle spasm resulting in abnormal gait or contour. There was no guarding. Muscle strength was full without atrophy. Reflexes were normal. Sensation was decreased in the bilateral lower legs and ankles. Straight leg raising tests were positive. Radiculopathy symptoms consisted of mild numbness, paresthesia, intermittent pain, and constant pain, except in the right lower extremity where constant pain was moderate. There was no ankylosis. There was no evidence of other neurologic abnormalities. He had IVDS but no incapacitating episodes over the prior 12 months. He was diagnosed with degenerative arthritis of the lumbar spine with mild radiculopathy affecting the bilateral sciatic nerves. The examiner identified functional loss consisting of difficulty with prolonged standing and walking and difficulty with lifting and carrying. In his October 2014 notice of disagreement, the Veteran stated that his low back had gotten worse, causing him to miss 110 days of work in the prior year. He stated that he was unable to keep a job due to his back. VA treatment records reflect that an October 2014 MRI of the lumbar spine was an essentially stable study with mild spondylotic changes mainly in the lower lumbar spine with varying degrees of mild foraminal narrowing. There was mild canal stenosis at L5/S1 and stable chronic postsurgical changes at L4/5 with a right hemilaminectomy. In February 2015 he presented to the emergency room reporting lower back pain radiating down the right leg. He also reported one week of urinary retention and incontinence. His physicians and neurologist found that his symptoms did not indicate cauda equina syndrome. A week later he presented to the emergency room reporting two weeks of right low back pain radiating down his right lower extremity. He denied loss of bowel or bladder control. He stated that he was unable to walk because of the pain in his right foot. His MRI results were unchanged since October 2014. In March 2015 his neurologist recommended against surgery. In April 2015 he presented to the emergency room reporting worsening back pain with bilateral sciatica, as well as four days of constipation, though his physician attributed the constipation to his opioid painkillers. In May 2015 he reported increased pain. His physician noted decreased ranges of motion with pain reproduction. There was no loss of sensation in the lower extremities. Strength was normal and symmetric. The Veteran underwent another VA examination on February 23, 2018. He reported constant pain and numbness in his lower back radiating into both lower extremities down to his feet. He reported flare-ups 4-5 days per week during which he stays in bed and cannot move. He used a back brace as needed, but it did not help. He used a cane and sometimes a walker. He declined range of motion testing due to pain. The examiner was unable to estimate loss of function in terms of loss of range due to lack of testing. There was objective evidence of tenderness in the lower back and pain with weight bearing. There was no guarding or muscle spasm. Muscle strength was 4/5 without atrophy. Reflexes were hypoactive. Sensory examination was normal. The examiner noted moderate constant pain, paresthesia, and numbness in both lower extremities. There were no other signs or symptoms of radiculopathy or other neurologic abnormality. There was no ankylosis. There was no IVDS. He was diagnosed with degenerative arthritis of the lumbar spine with moderate radiculopathy affecting the bilateral sciatic nerves, causing functional impact through limitations with bending, transferring, sitting, standing, walking, lifting weight, and prolonged driving. VA treatment records reflect that in July 2019 the Veteran reported back spasms three times per day and requested injections. At a September 2019 pain consultation, straight leg raising tests were negative. He had a limited range of motion without pain reproduction in the lumbar spine. No loss of sensation was noted. In February 2020 he reported worsening back pain. In March 2020 an MRI showed grossly unchanged mild degenerative changes with mild central canal stenosis and mild bilateral foraminal stenosis. At an August 2020 physical therapy consultation, he reported pain rated at 7/10 exacerbated by awkward movements. His forward flexion was reduced to 25 percent and his extension was reduced to 50 percent; all other ranges were intact. In September 2020 he presented to the emergency room reporting pain exacerbated to 10/10 without known cause. X-rays showed mild degenerative disc disease of the lumbar spine. In November 2020 he reported back spasms for the prior two months and requested an electric wheelchair. He stated that it is so bad that he is unable to get out of bed 3-4 days per week. He reported four falls in the prior three months. At his January 2021 hearing, the Veteran reported that his radiculopathy used to be mostly in his right leg, but now was in both. He stated that his feet were numb. He stated that his doctors put him on bed rest "all the time." The Veteran underwent another VA examination in March 2021. He reported worsening pain with more difficulty moving and more spasms. He said it was difficult to stand up straight. He reported pain in both legs that goes down to his toes. He reported use of an elastic brace and a cane. He declined range of motion testing because of his back spasms, stating that he still had to drive himself home from the examination. There was evidence of pain with weight-bearing and localized tenderness. He was examined during a flare-up. The examiner observed that the Veteran got about 30 degrees of forward flexion when going from the standing to seated position in the examination chair. Muscle spasm resulted in antalgic gait with lurching limp. There was no guarding. Muscle strength was full without atrophy. Reflexes were normal. Sensation was decreased in the bilateral feet and toes. Symptoms of radiculopathy consisted of mild pain in both extremities and mild numbness in the left lower extremity. There was no ankylosis. There were no other neurologic abnormalities. IVDS was present, but there were no incapacitating episodes in the prior year. He was diagnosed with degenerative arthritis of the lumbar spine with mild radiculopathy in the bilateral lower extremities. The examiner identified functional impact involving interference with standing and sitting but found that the Veteran was suitable for sedentary employment. The Board finds that an evaluation in excess of 40 percent is not warranted for the Veteran's lumbar spine disability. Higher ratings are available for incapacitating episodes or for unfavorable ankylosis of the entire thoracolumbar spine. The evidence weighs against such symptoms. There is no evidence in the record of ankylosis. While the Veteran reported at two VA examinations that he was in too much pain for range of motion testing due to current flare-ups, at his March 2021 VA examination the examiner observed approximately 30 degrees of forward flexion as the Veteran sat down. This measurement was not taken by a goniometer and is thus not reliable to determine limitations of range. Nevertheless, it was sufficient to demonstrate that the Veteran did not exhibit unfavorable ankylosis of the entire thoracolumbar spine during a flare-up. Furthermore, there is no medical evidence of incapacitating episodes. The Veteran has stated that his doctors prescribe bed rest all the time, but there is no evidence of such episodes in his treatment records. For these reasons, the Board finds that an evaluation in excess of 40 percent is not warranted for the Veteran's lumbar spine disability. Prior to February 23, 2018, the Board finds that evaluations in excess of 10 percent are not warranted for the Veteran's radiculopathy of the lower extremities. Higher ratings are available for complete paralysis or for incomplete paralysis that is moderate, moderately severe, or severe. The evidence weighs against such severity of symptoms. The September 2014 VA examiner found and diagnosed mild radiculopathy in both lower extremities. There is no evidence in the record which explicitly contradicts this characterization for this period, with the exception of the moderate numbness explicitly considered by the September 2014 examiner in determining that the overall disability was mild. VA treatment records reflect reports of pain and numbness, but none of these reports contradict the mild characterization given by the September 2014 VA examiner. For these reasons, evaluations in excess of 10 percent are not warranted prior to February 23, 2018. From February 23, 2018, the Board finds that evaluations in excess of 20 percent are not warranted for the Veteran's radiculopathy of the lower extremities. Higher ratings are available for complete paralysis or for incomplete paralysis that is moderately severe or severe. The evidence weighs against such severity of symptoms. The February 2018 VA examiner found and diagnosed moderate radiculopathy in both lower extremities. There is no evidence in the record which explicitly contradicts this characterization for this period, with the exception of the March 2021 VA examination report which found mild radiculopathy in both extremities. VA treatment records reflect reports of pain and numbness, but none of these reports contradict the moderate characterization given by the February 2018 VA examiner. For these reasons, evaluations in excess of 20 percent are not warranted from February 23, 2018. 13. Entitlement to a TDIU The Veteran seeks a TDIU. He contends that his service-connected disabilities, when considered in combination, render him unemployable. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service ("Director") for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The fact that a veteran is in receipt of a combined schedular rating of 100 percent does not preclude the availability of a TDIU. Although no additional disability compensation may be paid when a total schedular rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC, and thus must be considered by the Board. Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran is in receipt of the ratings addressed above, along with a 70 percent rating for chronic adjustment disorder and a noncompensable rating for laceration of the left third finger. His combined schedular rating prior to August 12, 2020 is therefore 90 percent, and he meets the eligibility threshold for a schedular TDIU under 38 C.F.R. § 4.16(a) for this period. After implementation of this Board decision, the Veteran will be in receipt of a combined schedular rating of 100 percent effective August 12, 2020. He is therefore only eligible for a TDIU based on a single disability after August 12, 2020, in the context of potential entitlement to special monthly compensation (SMC). See Bradley, 22 Vet. App. at 293-94. In a May 2014 statement, the Veteran reported that he missed more than 30 days of work due to his disabilities and is unable to keep a job. In a December 2014 statement, the Veteran stated that he had not worked since May 2014. He had been on leave, and he was recently fired for his medical absences. Social Security Administration records reflect that in a December 2016 disability determination and transmittal, the Veteran was determined to be disabled from May 2014 with a primary diagnosis of a back disorder and secondary diagnoses of osteoarthritis and allied disorders. In a January 2021 application for a TDIU, the Veteran reported that he had not worked since November 2014 when he left his job as a mortgage closer. He attributed his inability to work to his back disability. He stated that he had a high school education. The Veteran underwent a VA examination for his mental health in April 2021. The examiner diagnosed adjustment disorder with depressed mood productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities have rendered him unemployable or unable to secure and follow a substantially gainful occupation from May 15, 2014 to August 12, 2020. Since he left his job in November 2014, the Veteran has consistently reported that his back pain has prevented him from engaging in office work. The Social Security Administration agreed, finding him disabled with a primary diagnosis of a back disorder. In addition, the Veteran has been found to have a service-connected mental health disability with occupational impairment with deficiencies in most areas. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities have rendered him unemployable or unable to secure and follow a substantially gainful occupation from May 15, 2014 to August 12, 2020. A TDIU for this period is therefore granted. In the context of potential entitlement to special monthly compensation (SMC) under Bradley, The Board further finds that for the period from August 12, 2020, the evidence weighs against a finding that the Veteran has been rendered unemployable or unable to secure and follow a substantially gainful occupation by a single service-connected disability. The Veteran has stated that it is his back disability that most affects his employability, but this disability is rated at 40 percent, and thus cannot form the basis of a schedular TDIU on its own. In any event, his back disability affects him most in conjunction with separate ratings for radiculopathy, which cannot together be the basis of a Bradley TDIU. The only disabilities which meet the schedular threshold on their own are PTSD and shingles. The evidence does not establish and the Veteran does not contend that his PTSD or his shingles, on their own render him unemployable. For these reasons, the Board finds that for the period from August 12, 2020 the evidence weighs against a finding that the Veteran has been rendered unemployable or unable to secure and follow a substantially gainful occupation by a single service-connected disability. A TDIU for this period is therefore not warranted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.