Citation Nr: 21066045 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-08 730 DATE: October 28, 2021 ORDER Entitlement to an initial rating in excess of 40 percent for lumbar spine strain with degenerative disk disease, prior to December 10, 2016, is denied. Entitlement to a 60 percent rating, but no higher, for lumbar spine strain with degenerative disk disease, since December 10, 2016 is granted, under the Formula for Rating Intervertebral Disk Syndrome (IVDS). Entitlement to an initial 40 percent rating, but no higher, for left lower extremity radiculopathy associated with lumbar spine strain, with degenerative disk disease is granted. Entitlement to an initial 40 percent rating, but no higher, for right lower extremity radiculopathy associated with lumbar spine strain, with degenerative disk disease is granted. Entitlement to service connection for a neck disability is granted. Entitlement to service connection for a right foot disability is granted. Entitlement to service connection for a left foot disability is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to December 10, 2016, the Veteran's lumbar spine strain with degenerative disk disease was manifested by forward flexion less than 30 degrees, but unfavorable ankylosis of the entire thoracolumbar spine was not shown; IVDS resulting in incapacitating episodes having a total duration of at least 6 weeks during a 12 month period was not shown. 2. Resolving any reasonable doubt in the Veteran's favor, the evidence beginning December 10, 2016, is sufficient to establish that the Veteran's lumbar spine strain with degenerative disk disease manifests at a severity of incapacitating episodes having a total duration of at least 6 weeks during a 12 month period. 3. For the entire period on appeal, the Veteran's left lower extremity radiculopathy associated with lumbar spine strain, with degenerative disk disease has been manifested by moderately severe incomplete paralysis of the affected nerve. 4. For the entire period on appeal, the Veteran's right lower extremity radiculopathy associated with lumbar spine strain, with degenerative disk disease has been manifested by moderately severe incomplete paralysis of the affected nerve. 5. The Veteran's neck disability had its onset in service or is etiologically related to his active service. 6. The Veteran's right foot disability had its onset in service or is etiologically related to his active service. 7. The Veteran's left foot disability had its onset in service or is etiologically related to his active service. 8. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to December 10, 2016, the criteria for an initial evaluation in excess of 40 percent for lumbar spine strain with degenerative disk disease were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.27, 4.71a, Diagnostic Codes (DCs) 5242-5243. 2. Since December 10, 2016, the criteria for a 60 percent rating, but no higher, for lumbar spine strain with degenerative disk disease have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.71a, DC 5243. 3. For the entire period on appeal, the criteria for a 40 percent rating for left lower extremity radiculopathy associated with lumbar spine strain, with degenerative disk disease has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 4. For the entire period on appeal, the criteria for a 40 percent rating for right lower extremity radiculopathy associated with lumbar spine strain, with degenerative disk disease has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 5. A neck disability was incurred in service. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. A right foot disability was incurred in service. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 7. A left foot disability was incurred in service. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to April 1984. The Veteran testified before a Veterans Law Judge (VLJ) in January 2021. A transcript of that hearing is of record and associated with the claims file. However, the VLJ who presided over the hearing is no longer employed at the Board. In an August 2021 letter, the Veteran was provided with the opportunity to request a new hearing; however, he failed to respond to the letter. The letter noted that if the Veteran did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly. As such, the Board may proceed on the appeal. This case was previously before the Board in March 2021 when the issues listed above were remanded for additional development. A July 2021 supplemental statement of the case was most recently issued and the claims are once again before the Board. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's back disability is rated as 40 percent disabling for the entire period on appeal under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. He is in receipt of a separate 20 percent rating for left lower extremity radiculopathy and 20 percent for right lower extremity radiculopathy, both associated with his lumbar spine with degenerative disk disease. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 40 percent rating if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note (1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. 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 Veteran 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. Prior to the regulatory change, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 40-percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60-percent rating, the highest rating available under this schedule, is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). As of February 7, 2021, under the amended criteria, the diagnostic code is more restrictive in that this diagnostic code is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and Diagnostic Code 5242 is to be assigned for all other disc diagnoses. The rating criteria remain the same. As the "older" criteria is more favorable to the Veteran, the older less restrictive DC 5243 will be used. Under DC 5243, IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. 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) has 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In adjudicating below whether the Veteran meets the criteria for higher evaluations for his back disability, the Board has not overlooked the Court's holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds that further delay by remanding the Veteran's increased rating claim for his service-connected spine disability for a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). 1. Entitlement to an initial rating in excess of 40 percent, prior to December 10, 2016, for lumbar spine strain with degenerative disk disease. The Veteran initially underwent a VA examination in September 2010. Range of motion testing revealed flexion to 50 degrees. Pain was noted. The examiner noted that there were no incapacitating episodes due to intervertebral disc syndrome. In an April 2012 examination, completed by the Veteran's VA treating physician, she noted that the Veteran was unable to work and unable to stand for long periods of time. The treating physician specifically noted that the Veteran had not been prescribed bed rest due to a period of acute signs and symptoms as the result of IVDS. The Veteran underwent a VA examination in May 2015. Following repetitive-use testing the Veteran was only able to exhibit 30 degrees of forward flexion. Pain was noted on range of motion. The examiner specifically noted no ankylosis of the spine. The examiner noted no IVDS. Prior to December 10, 2016, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar spine strain with degenerative disk disease. The Board acknowledges the Veteran's lay reports of symptoms. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was prescribed bed rest by a physician for a duration that meets the criteria for a higher rating, prior to December 10, 2016. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In sum, the medical and lay evidence of record does not more nearly approximate the criteria for a rating in excess of 40 percent, prior to December 10, 2016. The claim for increased rating for lumbar spine disability must therefore be denied, prior to December 10, 2016. 2. Entitlement to a rating in excess of 40 percent, since December 10, 2016, for lumbar spine strain with degenerative disk disease. Based on all the evidence of record described below, beginning December 10, 2016, the Board finds that a rating of 60 percent is warranted. In a December 2016 examination, completed by the Veteran's VA treating physician, she noted that the Veteran had forward flexion of 30 degrees or less. Significantly, she noted that the Veteran had been prescribed bed rest due to a period of acute signs and symptoms as the result of intervertebral disc syndrome. She noted that the total duration of time during the past twelve months had been six weeks or more. The Veteran underwent a VA examination in September 2018. Following repetitive testing the Veteran was only able to exhibit forward flexion to 30 degrees. The examiner noted that the Veteran had experienced episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. However, this examiner only noted that bed rest had been prescribed at least 1 week but less than 2 weeks during the past 12 months. In a January 2021 letter from the Veteran's VA treating physician, she noted that she had previously completed a questionnaire about the Veteran's lumbar spine in December 2016. She noted that the Veteran continues to suffer from IVDS which has required at least six weeks of bed rest in the last 12 months due to periods of acute signs and symptoms. She opined that the Veteran's lumbar spine condition, along with his complicating radiculopathy in his bilateral lower extremities has prevented him from performing full time competitive work since February 2012. The Veteran underwent an additional VA examination in June 2021. The estimated range of motion during flare-ups was noted to be 30 degrees of forward flexion. No information was provided about IVDS. A July 2021 VA examination was provided. The examiner noted that the Veteran had IVDS that required bed rest having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Treatment records during this portion of the period on appeal reflect that the Veteran received epidural shots to treat his back pain. From December 10, 2016, the evidence supports that the Veteran's IVDS is at a severity resulting in incapacitating episodes totaling at least 6 weeks over a 12 month period. Although not all the evidence supports this, specifically some of the VA examinations, the Board finds most probative the statements of the Veteran's VA treating physician who confirmed that his IVDS results in prescribed bed rest of at least six weeks in the past 12 months. Resolving any reasonable doubt in the Veteran's favor, the Board finds that the December 10, 2016 letter from his VA treating physician was the earliest reliable evidence supporting a change in the severity of the manifestation of the Veteran's IVDS. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Accordingly, a rating of 60 percent is warranted beginning December 10, 2016. Id.; 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS. Since December 10, 2016, a 60 percent rating is the highest rating available under the Formula for Rating IVDS. Under the General Rating Formula for Diseases and Injuries of the Spine, a rating higher than 60 percent would be available only if there is evidence of unfavorable ankylosis of the entire spine. Here, the evidence does not show that the Veteran had unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5243. 3. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy associated with lumbar spine strain, with degenerative disk disease. 4. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy associated with lumbar spine strain, with degenerative disk disease. Objective neurologic abnormalities associated with a spinal disability are evaluated as separate disabilities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Veteran is currently in receipt of a 20 percent rating for left lower extremity radiculopathy, and a 20 percent rating for right lower extremity radiculopathy, both associated with his lumbar spine strain with degenerative disk disease. Both his left and right lower extremity radiculopathy has been rated under DC 8520 for the entire period on appeal. Under DC 8520, a 10 percent rating is warranted for mild paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe paralysis of the sciatic nerve. A 60 percent rating is warranted for severe paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is warranted for: complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The Board notes that the words "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. At a September 2010 VA examination, a sensory examination was normal. A reflex examination revealed absent findings. Muscle tone was described as normal and there was no muscle atrophy. The Veteran was diagnosed with bilateral L5 radiculopathy. At a May 2015 VA examination it was noted that the Veteran had moderate constant pain in the right and left lower extremities. Moderate paresthesias and/or dysesthesias and moderate numbness were also noted. Muscle strength testing revealed normal findings of the lower extremities except for mildly reduced findings at knee extension. No muscle atrophy was noted. A reflex examination revealed hypoactive findings. A sensory examination revealed decreased findings. The examiner noted mild incomplete paralysis of the sciatic nerve, bilaterally. It was noted that the Veteran used a cane for walking. A December 2016 examination completed by the Veteran's VA treating physician noted bilateral lower extremity radiculopathy of mild severity. The Veteran underwent a VA examination in September 2018. The examiner noted moderate constant pain in the bilateral lower extremities. Moderate paresthesias and/or dysesthesias and numbness were also noted in the bilateral lower extremities. Muscle strength testing revealed normal findings. A reflex examination was also normal at that time, while a sensory examination revealed decreased findings. The examiner noted moderate incomplete paralysis of the sciatic nerve, bilaterally. It was noted that the Veteran used a cane constantly, and a walker and scooter with regular frequency. The Veteran underwent a VA examination in June 2021. Muscle strength testing at that time was normal. There was no muscle atrophy noted. A sensory examination revealed decreased findings at the foot/toes, bilaterally. The examiner noted moderate constant pain, and severe intermittent pain, paresthesias and/or dysesthesias and numbness. No other neurological abnormalities or findings were observed that are related to a thoracolumbar spine condition. A July 2021 VA examination was additional completed. Muscle strength testing revealed slightly reduced findings. No muscle atrophy was noted. A sensory examination revealed decreased findings. The examiner noted moderate constant pain, paresthesias and/or dysesthesias and numbness. The examiner noted severe intermittent pain. No other signs of radiculopathy were noted. It was noted that the Veteran uses a walker on a constant basis. The Veteran testified at his January 2021 BVA hearing that he suffers from numbness in his legs all of the time and has fallen a couple of times. He reported the use of assistive devices. After careful review of the evidence, the Board determines the Veteran's right and left lower extremity radiculopathy have more closely approximated moderately severe incomplete paralysis of the affected nerve. The Veteran has reported severe symptoms, as noted above, in various examinations. He additionally testified that the numbness in his legs has resulted in falling and the reports note the consistent use of assistive devices to ambulate. While the examiners as a whole have characterized the Veteran's radiculopathy at most as "moderate" in severity, upon review of the clinical evidence of record, the VA examination findings, and the Veteran's and his representative's statements, the Board finds his disabilities more nearly approximate moderately severe incomplete paralysis. This is particularly so after resolving reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. As a result, the Board finds the criteria for a 40 percent rating have been met for right lower extremity radiculopathy and left lower extremity radiculopathy throughout the period on appeal. See 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520. Notwithstanding the increase herein granted, the Board finds the evidence does not support a rating in excess of 40 percent, for either lower extremity. Noticeably, the evidence does not demonstrate incomplete paralysis with marked muscular atrophy of the lower extremities, which is the required criteria for a 60 percent rating. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 5. Entitlement to service connection for a neck disability. 6. Entitlement to service connection for a right foot disability. 7. Entitlement to service connection for a left foot disability. The Veteran contends that his neck, right foot and left foot disabilities are related to an in-service injury, specifically to parachute jumps he completed in service. His story has remained consistent throughout the years. His DD 214 reflects that he received a parachute badge and also took basic airborne training. The Board finds the Veteran's allegations reasonable, based on a review of the personnel records. 38 U.S.C. § 1154(a). The specific jumps the Veteran was subjected to is unclear. Although the service treatment records do not specifically reflect treatment for in-service neck, right foot, or left foot injuries, the Board finds that the Veteran's consistent statements and supporting evidence are credible, and the Board concedes that he injured his neck, right foot and left foot in service, although the extent of the injuries are unknown. In a January 2021 opinion provided by the Veteran's VA treating physician, she noted that the Veteran has a cervical spine impairment (spinal stenosis at C2-C3 and C3-C4) and bilateral foot disability (achilles tendonitis, spurring and pes planus) which are at least as likely as not the result of his work as a paratrooper while in the military. With respect to his cervical spine disability, the VA treating physician noted that the forces associated with work as a paratrooper, particularly hard landings, likely caused the advanced degeneration in these areas. With respect to his bilateral feet, she noted that the Veteran's foot and ankle conditions stem from traumatic landings completed during his work as a paratrooper in service. A VA examination has not been provided. After consideration of the evidence, and resolving all doubt in favor of the Veteran, the Board finds that all elements of service connection have been satisfied, and the claims of service connection for a neck disability, right foot disability, and left foot disability are granted. See 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(d). TDIU 8. Entitlement to TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Entitlement to a TDIU is granted where a Veteran's service-connected disabilities are rated less than total but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. The Veteran's ratings for his service-connected disabilities meet the threshold schedular criteria for consideration of a TDIU in this case. 38 C.F.R. § 4.16(a). Evidence of record reflects that the Veteran last engaged in substantially gainful employment around December 2008. See VA Forms 21-8940, signed April 2016; July 2018 Employer Letter. The evidence reflects that the Veteran suffers from service-connected panic disorder, lumbar spine strain with degenerative disk disease, left lower radiculopathy, and right lower radiculopathy. The Veteran has additionally been granted service connection for a neck disability, right foot disability and left foot disability in the decision above. In an April 2012 assessment of his spine, completed by the Veteran's VA treating physician, she noted that the Veteran was unable to work due to his pain. In an October 2012 VA treatment record, the VA treating physician further elaborated on her April 2012 assessment. She summarized the Veteran's health issues and medications. She noted that the Veteran is unable to perform sedentary work due to chronic pain, cognitive impairment, difficulty concentrating, depression and medication side effects. In a November 2015 statement, the same VA treating physician noted that in her opinion the Veteran is 100 percent disabled and unable to work. In a February 2016 examination the same VA treating physician completed, considering the Veteran's psychiatric disability, she noted that the Veteran cannot work. In a February 2016 statement by a registered nurse, she noted that the Veteran was unable to work due to a variety of disabilities including the cervical spine, lumbar spine and heel spurs. In a December 2016 examination completed by the Veteran's VA treating physician regarding his spine, she noted that the Veteran is not capable of working at all. The Veteran's VA treating physician submitted a June 2020 letter. She stated that in her opinion the Veteran's medical conditions make him 100 percent disabled and unemployable. She noted that as a paratrooper in the military he was involved in sky diving and jumping off and landing on the ground with heavy loads on his back which resulted in neck and low back pain that make him 100 percent disabled. In addition, she noted that he has various other disabilities, not all that are service-connected. Finally, in a January 2021 letter from the same VA treating physician, she noted that the Veteran's lumbar spine condition, along with complicating radiculopathy in the bilateral lower extremities, has prevented him from performing full time competitive work since February 2012. At the end of her letter, she noted that it is her opinion that the Veteran's service-connected conditions, including his lumbar spine impairment, bilateral radiculopathy, and anxiety disorder, prevent him from performing full time competitive work. The Veteran's records additionally show that he is in receipt of disability benefits from the Social Security Administration (SSA). In light of the Veteran's education level, occupational background, and functional limitations, and giving him the benefit of the doubt, the Board finds that the Veteran's service-connected disabilities are sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.