Citation Nr: 21065950 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-16 252 DATE: October 28, 2021 ISSUES 1. Entitlement to a disability rating in excess of 20 percent for degenerative arthritis lumbar spine with intervertebral disc syndrome (hereinafter, low back disability). 2. Entitlement to an initial separate disability rating in excess of 10 percent for right lower extremity radiculopathy associated with the low back disability. 3. Entitlement to an initial separate disability rating in excess of 10 percent for left lower extremity radiculopathy associated with the low back disability. 4. Entitlement to a TDIU. ORDER Entitlement to an initial disability rating in excess of 20 percent for a low back disability is denied. Entitlement to an initial separate disability rating in excess of 10 percent for radiculopathy of the right lower extremity associated with the low back disability from May 10, 2021 is denied. Entitlement to an initial separate disability rating in excess of 10 percent for radiculopathy of the left lower extremity associated with the low back disability from May 10, 2021 is denied. Entitlement to a separate disability rating of 10 percent, but no higher, for radiculopathy of the right lower extremity associated with the low back disability is granted from April 17, 2017 to May 10, 2021, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate disability rating of 10 percent, but no higher, for radiculopathy of the left lower extremity associated with the low back disability is granted from April 17, 2017 to May 10, 2021, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a TDIU is denied. FINDINGS OF FACT 1. The Veteran's low back disability has not been manifested by forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS) at any point during the appeal. 2. From May 10, 2021, the Veteran's right lower extremity radiculopathy associated with the low back disability is manifested by no more than mild incomplete paralysis. 3. From May 10, 2021, the Veteran's left lower extremity radiculopathy associated with the low back disability is manifested by no more than mild incomplete paralysis. 4. The Veteran's right lower extremity radiculopathy associated with the low back disability manifests radiating pain that most nearly approximates mild incomplete paralysis from April 17, 2017 to May 10, 2021. 5. The Veteran's left lower extremity radiculopathy associated with the low back disability manifests radiating pain that most nearly approximates mild incomplete paralysis from April 17, 2017 to May 10, 2021. 6. The Veteran did not return a completed VA Form 21-8940 to support his claim of entitlement to a TDIU, and the evidence of record does not otherwise demonstrate to an as likely as not degree that he is unable to obtain or retain gainful employment by virtue of his service-connected low back disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for a low disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5243. 2. The criteria for an initial disability rating in excess of 10 percent for right lower extremity radiculopathy associated with the low back disability from May 10, 2021 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 3. The criteria for an initial disability rating in excess of 10 percent for left lower extremity radiculopathy associated with the low back disability from May 10, 2021 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for a separate rating of 10 percent, but no higher, for radiculopathy of the right lower extremity associated with the low back disability from April 17, 2017 to May 10, 2021 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 5. The criteria for a separate rating of 10 percent, but no higher, for radiculopathy of the left lower extremity associated with the low back disability from April 17, 2017 to May 10, 2021 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 6. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from July 2000 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran was afforded a Videoconference Hearing before the undersigned Veterans Law Judge in July 2020. A transcript of that hearing is of record. This matter was previously before the Board in February 2019. In that February 2019 decision, the Board, in pertinent part, remanded the issue of entitlement to an increased rating for a low back disability (previously claimed as a sacral strain with kyphotic posture). In the February 2019 decision, the Board found the issue of TDIU raised by the record under Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issue of TDIU for further development. In an August 2021 rating decision, the Veteran's disability rating for degenerative arthritis lumbar spine with intervertebral disc syndrome (previously rated as sacral strain with kyphotic posture (claimed as low back pain with S1 joint dysfunction), was increased from 10 percent to 20 percent disabling, effective January 30, 2013. Because this increase did not constitute a full grant of the benefits sought throughout the rating period on appeal, the issue of entitlement to a rating higher than 20 percent for a back disability remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). In this August 2021 rating decision, service connection was also granted for radiculopathy of the right and left lower extremity in association with his low back disability. The Veteran was assigned an initial 10 percent disability rating for his right and left lower extremity radiculopathy, effective May 10, 2021 (the date of the VA examination). The AOJ noted that the issues are inextricably intertwined with the Veteran's appellate issues. The Board notes that the Veteran did not file a substantive appeal as to either the effective date or rating assigned for his right and left lower extremity radiculopathy. Notwithstanding, the evidence of record for this Veteran indicates that the claim for right and left lower extremity radiculopathy is part and parcel of his increased rating claim for the low back disability. See 38 C.F.R. § 4.71; See also, Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021). Therefore, the Board will consider (1) whether a higher initial rating is warranted for the Veteran's right and left lower extremity radiculopathy, as well as consider (2) whether a separate disability rating is warranted during any period of this Veteran's low back disability appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Entitlement to a disability rating in excess of 20 percent for a low back disability. The Veteran's back disability is evaluated pursuant to DC 5243, which is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Pursuant to that formula, as relevant here, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. The Board notes that the General Rating Formula rating criteria was not affected by the February 7, 2021 amendments. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. Id., Note (1). Unfavorable ankylosis is defined by VA regulation as a condition in which the spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Id., Note (5). Fixation in the neutral position of zero degrees always represents favorable ankylosis. Id. Background: As noted in the introduction of this decision, a November 2013 rating decision awarded the Veteran service connection for a sacral strain with kyphotic posture (claimed as low back pain with S1 Joint Dysfunction) and assigned a 10 percent rating, effective January 30, 2013. The Veteran filed a Notice of Disagreement (NOD) with this rating decision on September 19, 2014. In an August 2021 rating decision, the Veteran's low back disability rating was increased to 20 percent disabling, effective January 30, 2013. In this rating decision, the Veteran's low back disability was characterized as degenerative arthritis lumbar spine with intervertebral disc syndrome. Discussion During the course of this appeal, the Veteran has been afforded two Back Condition examinations (November 2013 and May 2021). At the November 2013 VA examination, the examiner rendered a diagnosis of sacral strain and kyphotic posture. See November 5, 2013 Back Conditions examination, pg. 3. The examiner reported that the Veteran attempts to be in good physical condition by exercise and that he has a well-balanced musculature, but is unable to stand straight. Id Addressing Flare-ups: The examiner reported that the Veteran reported flare-ups four weeks ago, with aggravation by work, moving, requiring bed rest more than 24 hours, arising only for toileting and meals. Id. at 2. Addressing Functional loss: The examiner reported that the Veteran has trouble with prolonged walking, standing, heaving lifting. The examiner also reported that the Veteran has trouble being as physically active with his kids. The examiner reported that the Veteran is hesitant to exercise. Id. at 4. Physical examination revealed forward flexion to 70 degrees, with pain. The Veteran was not able to perform repetitive testing with three repetitions. Pain and fatigue prevented repetitive-use testing. The Veteran did not report additional limitation of range of motion after repetitive use. Id. at 5. The Veteran did not have guarding or muscle spasm. There was no evidence of muscle atrophy or ankylosis. Id. at pgs. 6-7. The Veteran did not have any signs of radicular pain or any other signs or symptoms of radiculopathy. There was no evidence of IVDS of the spine. No arthritis was documented. Id. at 7. Addressing functional impact on work: the examiner reported that the Veteran back condition did impact his ability to work. The examiner reported that the Veteran reports that he knows how to lift, but back condition is aggravated by lifting tables and chairs and carrying objects down-stairs. He has difficulty reaching across tables when serving. Id. at pg. 9. Pursuant to the Board's February 2019 remand, the Veteran was afforded a May 2021 VA examination to determine the nature and severity of his low back disability. The VA examiner rendered a diagnosis of degenerative arthritis and intervertebral disc syndrome. See May 10, 2021, Back Conditions examination, pg. 2. On medical history, the Veteran reported worsening back pain including radiculopathy. The Veteran reported that he has tried multiple courses of physical therapy, acupuncture, chiropractic and yoga with limited effect. The Veteran reported that he also received spinal injections on several occasions, with the last 4 years ago with minimal effect. Addressing Flare-ups: The Veteran did not report flare-ups. Id. at pgs. 2-3. Addressing Functional loss: The VA examiner reported that the Veteran has trouble with prolonged walking, standing, heaving lifting. Trouble being as physically active with his kids. Hesitant to exercise. Id. at 4. Physical examination revealed forward flexion to 70 degrees, with pain, but no additional loss of motion with three repetitions. Addressing repeated use over time, the examiner indicated that pain, fatigue, weakness and lack of endurance would additionally limit the Veteran's lumbar range of motion to and an estimated range of motion to 65 degrees of forward flexion with repetitive use over time. With regards to flare-ups, the examiner indicated that the procured evidence from the Veteran does not suggest that pain, fatigability, weakness, lack of endurance or incoordination significantly limits the Veteran's functional ability with flare-ups. Passive Range of Motion testing: The examiner reported the passive range of motion testing was not performed because it was not possible to perform passive range of motion testing on the Veteran's back safely. The examiner reported that the Veteran denies flare-ups. Id. at pgs. 5-7. The examiner found evidence of guarding which resulted in an abnormal gait or abnormal spinal control. Th examiner reported that the Veteran had antalgic gait due to back pain from the degenerative arthritis and from the IVDS. Id. at 8. There was no evidence of muscle atrophy or ankylosis. The Veteran did not use an assistive device for ambulation Id. at pgs. 11-15. Addressing functional impact on work: the examiner reported that the Veteran missed 2-4 weeks of work time in the last 12 months. The examiner reported that the Veteran has trouble with prolonged walking, standing or lifting. The examiner reported that the Veteran had to change his profession due to the limitations. The Veteran was formerly a waiter and was unable to keep up with the physical demands of the job. The examiner reported that the Veteran's functional impairment is due to the degenerative arthritis and intervertebral disc syndrome. Id. at pg. 18. Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds that a disability rating in excess of 20 percent is not warranted at any point in this appeal for the following reasons. While the May 2021 examiner did report that there was evidence of guarding which resulted in an abnormal gait or abnormal spinal control, which does warrant a 20 percent rating for his low back disability, the probative evidence of record does not indicate forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, even when considering additional functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination. In this regard, when considering DeLuca factors, the Veteran retained motion in the thoracolumbar spine and any additional limitation due to pain, fatigue, weakness, lack of endurance or incoordination does not more nearly approximate a finding of forward flexion to 30 degrees or less, which would warrant a 40 percent rating. The Board underscores that the May 2021 Back Conditions examination report showed flexion limited to no less than 65 degrees following repetitive motion. This estimated range of motion was determined after procuring information from the Veteran with respect to additional limitation due to pain, fatigue, weakness, lack or endurance or incoordination. See May 2021 Back Conditions examination, pg. 7 & 14. Specifically addressing flare-ups, the examiner reported that information obtained from the Veteran does not suggest that pain, fatigability, weakness, lack of endurance or incoordination significantly limits the Veteran's functional ability with flare-ups. In point of fact, the May 2021 examiner reported that the Veteran denied flare-ups. Id. at pgs. 5-7. Additionally, no evidence of ankylosis was noted in this examination. Nor is there probative evidence of the functional equivalent of ankylosis. Id. at pgs. 5-8 & 14. See Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021). IVDS The Board has also considered whether evaluating the Veteran's back disability under the Formula for Rating IVDS (IVDS Formula) would be more beneficial to him. However, while there is evidence of IVDS, the record does not show that the Veteran has had any incapacitating episodes as contemplated within the applicable rating criteria. Otherwise stated, the evidence of record does not indicate that the Veteran required an episode of bed rest for 4 weeks over a period of 12 months, to allow for the assignment of a 40 percent rating, and the Veteran does not contend otherwise. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Thus, an increased rating is not available under the IVDS Formula. See also, May 2021, Back Conditions Examination, Id. at pg. 15. In summary, the Board finds that the Veteran's low back disability has not been manifested by forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS) at any point during the period on appeal. Accordingly, a rating higher than 20 percent rating is precluded. Entitlement to an initial separate disability rating in excess of 10 percent for right lower extremity radiculopathy associated with the low back disability. Entitlement to an initial separate disability rating in excess of 10 percent for right lower extremity radiculopathy associated with the low back disability. The Veteran is assigned a 10 percent rating under DC 8520 for radiculopathy of the right lower extremity and assigned a 10 percent rating under DC 8520 for radiculopathy of the left lower extremity. Under DC 8520, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124a. Discussion As referenced above in this decision, the Veteran has had two Back Conditions Examinations during the Course of this appeal. The Veteran's November 2013 Back Conditions examination indicated that the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. Muscle strength testing was 5 out of 5 in all tested areas. Deep tendon reflexes were normal. Sensory testing was normal. The Veteran's straight leg testing was normal. See November 5, 2013 Back conditions' examination, pgs. 4-7. Treatment records An August 21, 2014 medical record indicates that the Veteran denied radicular pain but does have some pain in his right gluteal area. An August 13, 2015 medical record indicates that the Veteran complained of worsening pain in the back region, with pain going from the lower back through sides of hips, which radiates to the hamstrings. The Veteran denies numbness and weakness. An April 17, 2017 treatment record indicates that the Veteran had a sacroiliac block. The Veteran's pain level was recorded at 7 out of 10. The treatment record reported that the Veteran tolerated the procedure well and there was no evidence of procedural complications. The treatment record reported that if radicular pain continues, re-consider record epidural steroid injection. A November 16, 2017 physical therapy notes indicate that the Veteran on pre-treatment has range of motion in standing with 80 percent flexion and zero percent extension with no radicular symptoms. An August 16, 2018 medical record indicates that the Veteran denies numbness or tingling; The Veteran also denies weakness in the lower extremities. In a September 4, 2019 statement, written for emergency hardship purposes, the Veteran stated that he has lower back pain all the time, with nerve pain that is cyclic (on and off continuously) from mild tingles in my feet and toes, numbness in my legs down to my toes. The Veteran stated that there have been times when he had to pull over because he was physically in earing crying in pain from sciatica. Pursuant to the Board's February 2019 Remand, the Veteran was afforded a May 2019 Back Condition's examination. The VA examiner reported that the Veteran had had Veteran had mild constant pain of the lower extremities, moderate intermittent pain of the lower extremities, mild paresthesias or dysesthesias, and mild numbness. There were no other signs or symptoms of radiculopathy. The examiner stated that the severity of the radiculopathy of the lower extremities was mild. Muscle strength testing was 5 out of 5 in all tested areas. Deep tendon reflexes were normal. Sensory testing was normal. The Veteran could not perform straight testing because of pain. The examiner indicated the nerve root involved with the Veteran's radiculopathy as the sciatic nerve. See May 2021 Back Conditions examination, pgs. 11-13. Analysis With respect to the initial rating for the Veteran's bilateral radiculopathy associated with his low back disability, the Board that an initial higher rating, in excess of 10 percent, is not warranted because the medical evidence shows that the Veteran's radiculopathy has been manifested by neurological symptoms best described as mild. After review of the Veteran's medical history and physical examination of the Veteran, the May 2021 examiner concluded that the severity of the radiculopathy of the lower extremities was mild. See May 10, 2021 Back Condition's examination, pg. 13. The May 2021 Back Conditions' examiner reported that the Veteran's muscle strength testing was 5 out 5 in all areas tested and sensory testing was normal. Id. at pgs. 11-13. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124a. With respect to whether a separate disability rating is warranted for the Veteran's bilateral radiculopathy associated with his low back disability during any other period of this Veteran's appeal: While the AOJ determined that the Veteran's radiculopathy associated with his service-connected low back condition was first manifest in the May 10, 2021 examination, the Board finds that the earliest lay and medical evidence of radiculopathy in connection with his low back disability is April 17, 2017. The basis for this finding is derived from an April 17, 2017 treatment record which indicates that if radicular pain continued, an epidural steroid injection would be re-considered. The Board is also cognizant of November 2017 medical records that report that the Veteran has no radicular symptoms; See also, August 16, 2018 medical record indicates that the Veteran denies numbness or tingling; denies weakness in the lower extremities. The Board however finds the Veteran's September 4, 2019 lay statement, written for emergency hardship purposes, probative with respect to his radiculopathy in which he indicated that he has lower back pain all the time, with nerve pain that is cyclic (on and off continuously) from mild tingles in my feet and toes, numbness in my legs down to my toes. Additionally, incorporating by reference our discussion regarding the Veteran's May 2021 Back Condition examination, on medical history, the May 2021 examiner reported that the Veteran has received spinal injections on several occasions, with the last one occurring 4 years ago. This medical history reference links with the Veteran's April 17, 2017 treatment record regarding reconsideration of epidural steroid injections if radicular pain returns. See May 2021 Back Condition's examination, pg. 3; See also, April 17, 2017 treatment record. As the record contains lay and medical evidence of radiculopathy affecting the Veteran's right and left lower extremities prior to the May 10, 2021 VA examination, cognizant of what the Board construes as a staged rating of the Veteran's service-connected radiculopathy in association with his low back disability claim by the AOJ, the Board finds that a separate 10 percent disability rating is warranted for radiating pain that most nearly approximates mild incomplete paralysis for his right and left lower extremity radiculopathy from April 17, 2017. See April 17, 2017 treatment record. The preponderance of the evidence however is against the claim for a disability rating for right and left lower extremity radiculopathy in excess of 10 percent at any point during the period on appeal. The probative evidence of record has indicated that the severity of the radiculopathy of the lower extremities is mild. See May 10, 2021 Back Condition's examination, pg. 13; See also November 2013 examination re: no radicular pain. The Board has considered the Veteran's statements that he experiences numbness and radiating pain down the lower extremities; however, based on the intermittent nature of the neurological impairment, the number of normal test (Sensory) results, lack of a finding of muscle atrophy and VA examinations during the claims period, and the characterization of the overall impairment as mild by the May 2021 VA examiner, the Board concludes that the Veteran's radiculopathy is contemplated by the current 10 percent ratings for mild incomplete paralysis of the sciatic nerves. The preponderance of the evidence is against the claims for higher ratings. Entitlement to a TDIU. The Veteran contends that he is entitled to a TDIU. See July 9, 2020 Board hearing transcript, pgs. 3, 9-10; See also, March 27, 2017 Form 9. In a November 2013 Back Conditions examination, the examiner reported that the Veteran's back condition did impact his ability to work. The examiner reported that the Veteran reports that he knows how to lift, but his back condition is aggravated by lifting tables, chairs and carrying objects downstairs. The examiner reported that the Veteran had difficulty reaching across tables when serving. See November 5, 2010, Back Conditions examination, pgs. 8-9. In a May 2021 Back Conditions examination, the examiner reported that the Veteran missed 2-4 weeks of work time in the last 12 months. The examiner reported that the Veteran has trouble with prolonged walking, standing or lifting. The examiner reported that the Veteran had to change his profession due to the limitations. The Veteran was formerly a waiter and was unable to keep up with the physical demands of the job. The examiner reported that the Veteran's functional impairment is due to the degenerative arthritis and intervertebral disc syndrome. See May 10, 2021 Back Condition's examination, pg. 18. In a May 2021 Medical Opinion, the examiner reported that the Veteran had objective evidence of moderate to severe pain during the exam and limited range of motion. The examiner reported that the Veteran report of back pain is exacerbated by heavy lifting or significant exertion. The Veteran reported difficulty with prolonged walking or standing. The examiner reported that due to the level of current disability from his back pain and pain down his legs, diagnosed as degenerative arthritis and intervertebral disc syndrome, the Veteran would only be able to perform light work. See May 10, 2021 Medical Opinion. As such, the Board finds that a claim of TDIU has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 477 (2009). TDIU Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran is service connected for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (previously rated as sacral strain with kyphotic posture (claimed as low back pain with S1 joint dysfunction), 20 percent from January 30, 2013; With the Board's grant: radiculopathy of the left lower extremity associated with degenerative arthritis of the lumbar spine with intervertebral disc syndrome, 10 percent from April 17, 2017; radiculopathy right lower extremity associated with degenerative arthritis of the lumbar spine with intervertebral disc syndrome, 10 from April 17, 2017. The Veteran's combined rating is 20 percent from January 30, 2013; and 40 percent April 17, 2017. As such, the Veteran does not meet the scheduler criteria for TDIU at any time during the appeal period. Although the Veteran does not meet the schedular criteria for consideration of a TDIU rating, the Board must also consider whether referral for extra-schedular consideration is warranted at any time during the appeal period. As set out above, such consideration is warranted when a Veteran fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), and when two additional criteria are met. First, it must be shown that the claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; see 38 C.F.R. § 4.16(b) (2019). Second, the case must present such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards; see 38 C.F.R. § 3.321 (2019). Upon review of the evidence in this case, the Board finds that referral of this case to the Director of the VA Compensation and Pension Service for extra-schedular consideration is not warranted in two respects. First, the Board denies entitlement to TDIU as a matter of law. A Veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). A substantially complete VA Form 21-8940 is essential to establishing entitlement to a TDIU because it gathers relevant and indispensable information regarding a Veteran's disabilities, his current employment status and his educational history. However, the Veteran did not return a completed VA Form 21-8940 to support his claim. In February 2021, the Board remanded the matter to provide the Veteran with notice regarding how to substantiate his TDIU claim (to date he has not responded). See March 8, 2021 VA Correspondence re: how to substantiate TDIU Claim. Notably, the Board acknowledges the Veteran's assertion that he is entitled to a TDIU based on his service-connected back disabilities. See July 9, 2020 Board hearing transcript, pgs. 3, 9-10 See also, March 27, 2017 Form 9. The Board notes however that Veteran nor his representative have provided any reason for his failure to cooperate with the requested development. Additionally, the Veteran has not submitted any information addressing his employment status, including the date he last worked full-time or the date the Veteran became too disabled to work. Second, and equally significant, the Board notes that a January 2020 VA examination for post-traumatic stress disorder (PTSD) reports that the Veteran works in information technology as a Windows System technician, 40 hours per week, Monday through Friday. The VA examiner reported that the Veteran travels to hospitals to service their computers, and that he plans to get several IT certifications in the future so that he can improve upon his earning potential. See January 10, 2020 Post-Traumatic Stress Disorder (PTSD) examination, pg. 6. As referenced above, the May 2021 Back Condition's examiner indicated that the Veteran was currently employed. See May 10, 2021 Back Condition's examination, pg. 18. The Board emphasizes that a substantially complete VA Form 21-8940 gathers relevant and indispensable information regarding a Veteran's disabilities and employment history, including dates of employment, time lost from illness, the date the Veteran last worked full-time and the date the Veteran became too disabled to work. The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran both attests to his/her employment status, and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. See VA Form 21-8940. The burden is on the Veteran to substantiate that he is entitled to a TDIU. The duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As referenced above in this decision, a Veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). As noted at the onset of this discussion, referral to the Director of Compensation for extraschedular is not warranted for two reasons: First, the Veteran did not return a completed VA Form 21-8940 to support his claim of entitlement to a TDIU. Second, there is evidence that the Veteran is currently employed full-time. In summary, the Board finds that the evidence of record does not otherwise demonstrate to an as likely as not degree that the Veteran is unable to obtain or retain gainful employment by virtue of his service-connected low back disabilities. For the reasons discussed above, the Board finds that entitlement to a TDIU is not warranted; the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, Associate 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.