Citation Nr: 21066618 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-19 668 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 20 percent from December 21, 2016 for radiculopathy of the right lower extremity is denied. Entitlement to a rating in excess of 20 percent from December 21, 2016 for radiculopathy of the left lower extremity is denied. Entitlement to a rating in excess of 20 percent from December 21, 2016 for femoral radiculopathy of the left lower extremity is denied. Entitlement to a rating in excess of 20 percent for lumbar spine strain with disc herniation from December 21, 2016 to March 24, 2020 is denied. Entitlement to a 40 percent rating, but no higher, for lumbar spine strain with disc herniation from March 24, 2020, is granted, subject to the laws and regulations governing the payment of monetary benefits. From December 21, 2016, entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefit. REMANDED Prior to December 21, 2016, entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. From December 21, 2016, radiculopathy of the right lower extremity symptoms has been manifested by no more than moderate incomplete paralysis of the sciatic nerve. 2. From December 21, 2016, radiculopathy of the left lower extremity symptoms has been manifested by no more than moderate incomplete paralysis of the sciatic and femoral nerves. 3. Prior to March 24, 2020, the Veteran's lumbar spine strain with disc herniation was manifested by flexion of the lumbar spine to 50 degrees at worst, considering pain and other considerations, and he did not have ankylosis of the spine. 4. From March 24, 2020, the Veteran's lumbar spine strain with disc herniation was manifested by flexion of the lumbar spine to 30 degrees at worst, considering pain and other considerations, and he did not have ankylosis of the spine. 5. From December 21, 2016, the Veteran's service-connected disabilities combine to preclude substantially gainful employment. 6. During a June 2020 Board of Veterans' Appeals (Board) virtual tele-hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeals for higher disability ratings for radiculopathy of the lower extremities and for his back disability prior to December 21, 2016. CONCLUSIONS OF LAW 1. From December 21, 2016, the criteria for a disability rating higher than 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. From December 21, 2016, the criteria for a disability rating higher than 20 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, DC 8520. 3. From December 21, 2016, the criteria for a disability rating higher than 20 percent for left lower extremity femoral radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, DC 8526. 4. From December 21, 2016 to March 24, 2020, the criteria for a rating in excess of 20 percent for lumbar spine strain with disc herniation are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 5. From March 24, 2020, the criteria for a rating of 40 percent for lumbar spine strain with disc herniation are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 6. From December 21, 2016, the criteria for an award of a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1974 to June 1976 and from September 1978 to September 1982. During a June 2020 Board of Veterans' Appeals (Board) hearing, the Veteran stated that he was not appealing the ratings for right lower extremity radiculopathy, left lower extremity radiculopathy, and lumbar spine strain with disc herniation prior to December 21, 2016. The undersigned verified that the representative had explained the ramifications of the withdrawal of the appeal pertaining to the staged rating prior to December 21, 2016 for these disabilities; therefore, the Board accepts the withdrawal and Veteran's request to limit the appeal to the period from December 21, 2016 as to the increased rating claims. In April 2021, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2021, the AOJ granted entitlement to service connection for epididymitis (claimed as a left testicle injury/operation) and service connection for a scar, hydrocele status-post hydrocelectomy, both effective from May 2, 2013, the date of the Veteran's claim for service-connected of a left testicle injury/operation. This represents a full grant of the benefit sought on appeal, and as such, the issue is not before the Board. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. 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). 1. Entitlement to a higher rating for radiculopathy of the bilateral lower extremities and femoral radiculopathy of the left lower extremity The Veteran seeks ratings in excess of 20 from December 21, 2016 for his service-connected right lower extremity radiculopathy, left lower extremity radiculopathy, and left lower femoral radiculopathy. See June 2020 Board hearing testimony. The Veteran is currently assigned a 20 percent rating from December 21, 2016 for his service-connected right lower extremity radiculopathy and left lower extremity radiculopathy, as well as a 20 percent rating from December 21, 2016 for his service-connected left lower extremity femoral radiculopathy according to 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8526 and the General Rating Formula for Neurological Conditions and Convulsive Disorders. The Board will consider whether the Veteran is entitled to receive a higher rating for his radiculopathy of his bilateral lower extremities under all applicable diagnostic codes. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis. A 20 percent rating is assignable for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. A maximum rating of 80 percent is warranted for complete paralysis of the sciatic nerve; when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Similarly, impairment of the anterior crural or femoral nerve is on 10 percent for mild incomplete paralysis, 20 percent for moderate incomplete paralysis, and 30 percent for severe incomplete paralysis, while a 40 percent rating is assigned for complete paralysis of the quadriceps extensor muscles. Id., Diagnostic Code 8526. 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 should be for the mild, or at most, the moderate degree. Id. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120; see also 38 C.F.R. §§ 4.123, 4.124a; Barclay v. Brown, 4 Vet. App. 161, 163 (1993). In December 2016, the Veteran underwent a VA examination for back conditions. He was diagnosed with a lumbar spine strain with disc herniation, radiculopathy of the right lower extremity, and radiculopathy of the left lower extremity. The Veteran reported that pain radiated from his back to his left leg. He noted numbness and tingling in his left leg. He treated his symptoms with physical therapy, water therapy, heat and cold compresses, topical analgesics, exercise, and with medications. Physical examination revealed moderate constant pain of the bilateral lower extremities, moderate paresthesias and/or dysesthesias of the bilateral lower extremities, and moderate numbness of the bilateral lower extremities. He did not have intermittent pain of the bilateral lower extremities. The examiner noted that the Veteran had moderate radiculopathy of the right and left sciatic nerve and moderate radiculopathy of the left femoral nerve. The Veteran did not have muscle atrophy. In March 2020, the Veteran underwent a VA examination for peripheral nerve conditions. He was diagnosed with bilateral lower extremity radiculopathy. The Veteran reported intermittent lower back pain with numbness and tingling that radiated down both legs. He treated his symptoms with medication, topical cream, and a heating pad. He reported being unable to sit for more than 20 minutes, stand for more than 5 minutes, and was unable to bend. Physical examination revealed moderate bilateral intermittent pain of the bilateral lower extremities, moderate paresthesias and/or dysesthesias of the bilateral lower extremities, and moderate numbness of the bilateral lower extremities. He did not have constant pain of the bilateral lower extremities. Sensation testing was normal, muscle strength testing was normal, and reflexes were normal bilaterally. His gait was unsteady due to bilateral lower extremity radiculopathy and back pain. The examiner noted that the Veteran had moderate radiculopathy of the right and left sciatic nerve. A femoral nerve impairment was not noted upon examination. The Veteran did not have muscle atrophy. Also, he did not use assistive devices. During his June 2020 Board hearing, the Veteran asserted that his bilateral lower extremity radiculopathy increased in severity since he was last examined by VA in March 2020. He noted that he had numbness, pain, and tingling that radiated down both of his legs. Also, he noted that he had difficulty bending and sitting In September 2020, the Veteran underwent another VA examination. He was diagnosed with bilateral lower extremity radiculopathy. The Veteran reported constant lower back pain with intermittent pain, numbness, and tingling that radiated down both legs. He stated that he tried to not overexert himself with activities to reduce the possibility of worsening pain. Physical examination revealed moderate bilateral intermittent pain of the bilateral lower extremities, moderate paresthesias and/or dysesthesias of the bilateral lower extremities, and moderate numbness of the bilateral lower extremities. He did not have constant pain of the bilateral lower extremities. The sensory examination showed decreased left foot/toe sensation; however, muscle strength and reflexes were normal bilaterally. Gait was normal. The examiner noted that the Veteran had moderate radiculopathy of the right and left sciatic nerve. Also, the examiner noted that the Veteran's femoral nerve was normal. The Veteran did not have muscle atrophy. Also, he did not use assistive devices. During a June 2021 VA back examination, the Veteran had a normal sensory examination and no signs of radiculopathy. The above evidence establishes that, at worse, the Veteran's left lower extremity radiculopathy and right lower extremity radiculopathy, as well as femoral radiculopathy of the left lower extremity was manifested by decreased moderate incomplete paralysis. In December 2016 the Veteran was diagnosed with bilateral lower extremity moderate incomplete paralysis of the sciatic nerve and moderate radiculopathy of the left femoral nerve. In March 2020 and September 2020, VA examiners found that the Veteran had moderate radiculopathy of the right and left sciatic nerve after comprehensive medical examinations; however, these examinations noted a normal left femoral nerve. The Board concludes that the Veteran's right and left lower extremity radiculopathy and moderate radiculopathy of the left femoral nerve more nearly approximates, at worse, moderate incomplete paralysis from December 21, 2016. The Board has also considered whether any other diagnostic code would allow for a higher rating for the Veteran's right and left lower extremity radiculopathy or moderate radiculopathy of the left femoral nerve; however, there is no medical evidence of impairment of any other peripheral nerves other than the sciatic nerve of the bilateral lower extremities or femoral nerve for the left lower extremity which would warrant higher ratings under any other diagnostic codes. The Board observes that the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing and witnessing physical symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds that the statements provided by the Veteran regarding the effects of his current symptoms of his radiculopathy on his daily life are competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Accordingly, the Board finds that a rating in excess of 20 percent for left lower extremity radiculopathy, left lower extremity femoral radiculopathy, and right lower extremity radiculopathy is not in order. The Board finds further that the preponderance of the evidence is against a rating in excess of 20 percent from December 21, 2016 for left lower extremity radiculopathy, left lower extremity femoral radiculopathy, and right lower extremity radiculopathy. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 20 percent from December 21, 2016 for lumbar spine strain with disc herniation The Veteran asserts that his service-connected lumbar spine strain with disc herniation is more disabling than reflected by the assigned 20 percent disability rating from December 21, 2016 under 38 C.F.R. § 4.71a, Diagnostic Code 5237, pertaining to lumbosacral strain. At the outset, the Board acknowledges that the criteria for musculoskeletal disabilities in 38 C.F.R. § 4.71a were amended, effective February 7, 2021, and the "new" schedular criteria are applicable as of that date. 85 Fed. Reg. 76453 (Nov. 30, 2020). The only spine rating criteria affected by these revisions are Diagnostic Codes 5242 (pertaining to degenerative arthritis of the spine), and Diagnostic Code 5243 (pertaining to IVDS). The revised rating criteria of Diagnostic Codes 5242-5243, as in effect from February 7, 2021, now provide that degenerative arthritis and degenerative disc disease other than IVDS are rated under Diagnostic Code 5242, while Diagnostic Code 5243 is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is assigned for all other disc diagnoses. 85 Fed. Reg. 76,453 (November 30, 2020). The Veteran's lumbar spine disability is rated under the provisions of DC 5237 rated as 20 percent disabling from December 21, 2016. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, pursuant 38 C.F.R. § 4.71a, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3) provides that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) requires that each range of motion measurement be rounded to the nearest five degrees. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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 of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans Claims (Court) also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). The Board notes that the Veteran's VA treatment records and private treatment records are replete with complaints of low back pain. In December 2016, the Veteran underwent a VA disability and benefits questionnaire (DBQ) for back conditions. He was diagnosed with a lumbosacral strain, IVDS, and bilateral lower extremity radiculopathy. He reported constant back pain. His treatment included physical therapy, water therapy, heat and cold compression, topical creams, exercise, and pain medication. The Veteran reported flare-ups that limited twisting at the waist, bending forward, and lifting objects. Range-of-motion testing found the Veteran to have forward flexion to 50 degrees. Extension measured to 10 degrees. Bilateral lateral flexion and bilateral lateral rotation measured to 20 degrees each. Pain was noted on examination but did not result in/cause functional loss. There was evidence of mild tenderness at L5. There was no evidence of pain with weight bearing. The Veteran was unable to perform repetitive testing due to pain and fear of exacerbation. He did not have guarding or muscle spasm of the thoracolumbar spine, yet localized tenderness of the lumbar area was noted but did not result in abnormal gait or abnormal spinal contour. Muscle strength was rated 4/5. He did not have muscle atrophy. Reflex examination was normal. Sensory examination was normal for the right upper anterior thigh and right thigh/knee; however, the sensory examination found decreased sensation for the right lower leg/ankle, right foot/toes, and for the left lower extremity. The Veteran had moderate bilateral constant pain, moderate bilateral paresthesias and/or dysesthesias, and moderate bilateral numbness. The left femoral nerve and bilateral sciatic nerves were involved. The severity was moderate for the Veteran's bilateral lower extremities. There was no ankylosis of the spine. The Veteran had IVDS of the thoracolumbar spine with episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. He did not use assistive devices. An image study was not performed in conjunction with the examination. He did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner noted that the Veteran's service-connected back condition impacted his ability to walk long distances, bend, or perform heavy lifting. The Veteran reported that he was medically retired because he was not able to perform the required tasks and because he frequently injured and had to miss work to recover. In March 2020, the Veteran underwent another VA examination for back conditions. He was diagnosed with a lumbar spine strain with disc herniation. The Veteran reported severe intermittent low back pain with numbness, tingling, and radiation down his bilateral lower extremities. He treated his symptoms with medication, topical cream, and a heating pad. He reported being unable to sit more than 20 minutes, stand more than 5 minutes, and unable to bend. Daily flare-ups were reported lasting minutes to hours. Flare-ups were precipitated by standing, lifting, and bending for prolonged periods. The Veteran noted that his service-connected back disability prevented him from doing dishes. Range-of-motion testing found the Veteran to have forward flexion to 40 degrees. Extension measured to 10 degrees. Bilateral lateral flexion and bilateral lateral rotation measured to 10 degrees each. pain upon extension and right lateral rotation was noted upon examination and caused functional loss. There was no evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue of the thoracolumbar spine. There was no evidence of pain with weight bearing. There was no functional loss with repetitive testing. Upon testing repeated use over time, the examiner found that pain, weakness, fatiguability or incoordination significantly limited functional ability with repeated use over time. The examiner was able to describe in terms of range of motion and found that forward flexion would measure 30 degrees. Extension would measure 5 degrees. Bilateral lateral flexion and bilateral lateral rotation would measure 5 degrees each. He did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength was normal. He did not have muscle atrophy. Reflex examination was normal. Sensory examination was normal. The Veteran had moderate bilateral intermittent pain, moderate bilateral paresthesias and/or dysesthesias, and moderate bilateral numbness. The bilateral sciatic nerves were involved. The severity was moderate for the Veteran's bilateral lower extremities. There was no ankylosis of the spine. The Veteran did not have IVDS of the thoracolumbar spine. He did not use assistive devices. An image study was not performed in conjunction with the examination. He did not have a thoracic vertebral fracture with loss of 50 percent or more of height. The examiner noted that the Veteran's service-connected back condition impacted his ability to sit more than 20 minutes, stand more than 5 minutes, or bend. During his June 2020 Board hearing, the Veteran asserted that his back disability was manifested by constant pain and that it caused decreased range of motion. He reported difficulty bending and sitting due to his back pain. In June 2021, the Veteran underwent another VA DBQ for back conditions. He was diagnosed with a lumbar spine strain with disc herniation. The Veteran reported constant back pain, as well as numbness and tingling from his back to his left leg. He treated his symptoms with epidural injections, acupuncture, and medication. The Veteran did not report flare-ups. Range-of-motion testing found the Veteran to have forward flexion to 45 degrees. Extension measured to 20 degrees. Bilateral lateral flexion and bilateral lateral rotation measured to 20 degrees each. Pain was noted upon testing forward flexion. Passive range of motion was not tested as it would have likely caused the Veteran severe pain or risk of further injury. There was no crepitus. There was evidence of mild pain on palpitation of the paralumbar area. There was no functional loss with repetitive testing. He did not have guarding or muscle spasm of the thoracolumbar spine, yet localized tenderness of the lumbar area was noted but did not result in abnormal gait or abnormal spinal contour. Muscle strength was normal. He did not have muscle atrophy. Reflex examination was normal. Sensory examination was normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. The Veteran did not have IVDS of the thoracolumbar spine. He did not use assistive devices. An image study was not performed in conjunction with the examination. He did not have a thoracic vertebral fracture with loss of 50 percent or more of height. A June 2019 image study noted a benign lipoma center in the left paraspinal musculature posterior to the L5 traverse process. The examiner noted that the benign lipoma is clinically insignificant. The examiner noted that the Veteran's service-connected back condition impacted his ability to bend and turn his back. Upon review of the evidence, the Board finds that a rating in excess of 20 percent prior to March 24, 2020 for the Veteran's service-connected lumbar spine strain with disc herniation is not warranted. As noted, in order to warrant the next higher rating of 40 percent prior to March 24, 2020 for lumbar spine strain with disc herniation under the General Rating Formula for Diseases and Injuries of the Spine, the evidence must demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. The Board notes that prior to March 24, 2020, the Veteran's back disability was manifested by disability equating to limitation in the range of motion consisting of flexion to no worse than 50 degrees, even when pain on motion is taken into consideration as per DeLuca, supra. The December 2016 VA examiner found the Veteran did not have ankylosis. Therefore, the criteria for a 40 percent rating prior to March 24, 2020 are not met, and the ratings of 50 percent and 100 percent are not warranted at any time during the increased rating period on appeal because the Veteran does not experience ankylosis of his entire spine. However, the Board finds that the Veteran is entitled to a 40 percent disability rating for his service-connected lumbar spine strain with disc herniation from March 24, 2020. During his March 2020 VA examination, the VA examiner found that with repeated use over time the Veteran's forward flexion would be limited to 30 degrees. Under the General Rating Formula for Diseases and Injuries of the Spine, the evidence must demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less for a 40 percent disability rating. As such, the Board finds that a 40 percent disability rating for the Veteran's service-connected lumbar spine strain with disc herniation is warranted from March 24, 2020, the date the evidence first established that the Veteran's range of motion was limited to a degree to warrant the rating. Under both the former and revised rating criteria, IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020); 85 Fed. Reg. 76,453 (November 30, 2020). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability rating is warranted for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a , Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. Although the December 2016 VA examiner diagnosed the Veteran with IVDS of the thoracolumbar spine with episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months, the evidence of record does not reflect that the Veteran has had IVDS with incapacitating episodes at any time during the pendency of the appeal. See March 2020 and June 2021 VA examinations (No diagnosis of IVDS); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). The Board acknowledges the statements of the Veteran that he must lie prone in order to alleviate the symptoms of his lumbar spine disability; however, there is no evidence that a physician has prescribed bed rest due to the Veteran's IVDS. Thus, based upon a preponderance of the evidence, the Board finds that the Veteran's lumbar spine disability does not warrant a rating in excess of 20 percent prior to March 24, 2020 or a rating in excess of 40 percent from March 24, 2020 because the evidence of record does not reflect that the Veteran had incapacitating episodes requiring bed rest prescribed by a physician, which is a requirement for a rating for IVDS of the thoracolumbar spine. In reaching this decision, the Board acknowledges that the VA examiners have observed the Veteran to have pain throughout the range of motion on repetition and to report flare-ups that caused increased pain and limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a; DeLuca, 8 Vet. App. at 204-07. As discussed above, however, the functional impact of the Veteran's back disability has been considered by his VA examiners, and when reporting the loss experienced by the Veteran there has been no indication that his ability to function is restricted beyond the limits of motion specifically described in the VA examination reports. There has been no showing of the required forward flexion limitation of motion or ankylosis as required for the assignment of higher ratings. Without such pathology, an evaluation greater than 20 percent prior to March 24, 2020 or greater than 40 percent from March 24, 2020 is not warranted. The Board acknowledges the Veteran's statements to the effect that his back disorder causes him pain, especially when the disability flares up. Here, however, the Board finds that the current 20 percent rating prior to March 24, 2020 and 40 percent rating from March 24, 2020 takes into consideration any interference with the Veteran's overall function of his thoracolumbar spine due to his service-connected lumbar spine strain with disc herniation, including both pain on motion and flare-ups of the disability. As noted above, under the General Rating Formula, any associated objective neurologic abnormalities are separately rated under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Veteran is currently assigned 20 percent ratings from December 21, 2016 for his service-connected right lower extremity radiculopathy and left lower extremity radiculopathy, as well as a 20 percent rating from December 21, 2016 for his service-connected left lower extremity femoral radiculopathy according to 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8526 and the General Rating Formula for Neurological Conditions and Convulsive Disorders. The Board has considered whether the Veteran is entitled to receive a higher rating for his radiculopathy of his bilateral lower extremities under all applicable diagnostic codes. The Veteran has already been granted service connection for radiculopathy of the left lower extremity and service connection for radiculopathy of the right lower extremity both secondary to his service-connected lumbar spine strain with disc herniation from May 2, 2013, the date of service-connection for his lumbar spine strain with disc herniation. The issue of entitlement to higher ratings for his three neurologic conditions have been addressed above. Thus, in reviewing the medical evidence of record, the Board finds that the preponderance of the evidence is against a rating higher than 20 percent prior to March 24, 2020 for the Veteran's service-connected lumbar spine strain with disc herniation. However, effective March 24, 2020, a rating of 40 percent, but no higher, is warranted for lumbar spine strain with disc herniation. To the extent that any higher ratings are not assigned, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a TDIU VA law provides that a total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (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. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered in determining whether unemployability exists are the veteran's education and employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran's age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For a veteran to prevail on a claim of entitlement to a TDIU, the record must reflect some factor which takes the case outside the norm. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "Substantially gainful employment" is not currently defined in VA regulations; however, the term has been defined as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In other words, the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran's current service-connected disabilities are: (1) epididymitis, rated 20 percent disabling from May 2, 2013; (2) lumbar spine strain with disc herniation, rated 10 percent disabling from May 2, 2013, 20 percent disabling from December 21, 2016, and 40 percent disabling from March 24, 2020; (3) left lower extremity (sciatic nerve) radiculopathy, rated 10 percent disabling from May 2, 2013, 20 percent disabling from December 21, 2016; (4) right lower extremity (sciatic nerve) radiculopathy, rated 10 percent disabling from May 2, 2013, 20 percent disabling from December 21, 2016; (5) left lower extremity (femoral nerve) radiculopathy, rated 20 percent disabling from December 21, 2016; (6) tinnitus, rated 10 percent disabling from July 27, 2015; and residuals of hydrocelectomy and a scar associated with hydrocelectomy at noncompensable ratings. Thus, the Veteran's combined disability rating meets the threshold schedular criteria for eligibility for a TDIU from December 21, 2016 and thus, during the pendency of this appeal as well. The next issue is whether the Veteran has been rendered unemployable as a result of his service-connected disabilities. A review of the evidence of record demonstrates that the Veteran had maintained full-time employment. In a January 2020 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran stated that he last worked full-time for the United states Postal Service in August 2013. He contended that his service-connected back disability, bilateral lower extremity radiculopathy, residuals of hydrocelectomy, and tinnitus prevents him from working. He left his position due to his service-connected disabilities. He stated that his missed time from work due to illness was too sporadic to calculate. He did not report hospitalizations when he was employed for 32 years. He had a high school diploma. He had training as a construction machine operator in 1974 and as a military police officer in 1978. He stated that he used his employer's health benefits for treatment of his conditions and that he missed days from work when he was being treated. Specifically, he used sick days and vacation days when missing work. In March 2020, the Veteran's former employer, the United States Postal Service, noted that the Veteran worked full-time as a custodian from October 1983 to August 2015. His current duty status was retired, and he started receiving retirement benefits on August 16, 2015. During a January 2015 VA physical therapy appointment, the Veteran stated that he was seeking service connection so that he could retire from the postal service. Private treatment records from July 2016 to January 2019 indicated that the Veteran reported retiring from the United States Postal Service as a maintenance worker in August 2015. Further, VA treatment records are replete with the Veteran reporting that he retired from the United States Postal Service after working there for over 30 years. In July 2014, the Veteran underwent a VA examination for peripheral nerve conditions. The Veteran reported lower back pain with numbness that radiated down both legs. He noted difficulty standing and walking due to his numb feet. The VA examiner found that the Veteran's peripheral nerve conditions did not impact the Veteran's ability to work. During his September 2015 VA examination, the examiner found that the Veteran's tinnitus impacted his employability as it affected concentration, although the Veteran stated he had it so long that he learned to live with it. In December 2016, the Veteran underwent a VA examination for back conditions. He noted numbness and tingling in his left leg. The examiner noted that the Veteran's service-connected back condition impacted his ability to walk long distances, bend, or perform heavy lifting. The Veteran reported that he was medically retired because he was not able to perform the required tasks and because he frequently injured and had to miss work to recover. During a June 2018 VA behavior heath assessment, the Veteran reported that depressive symptoms made it extremely difficult to do his work, take care of things at home, or get along with others. The Board notes that the Veteran is not service-connected for any psychiatric condition. During a March 2019 VA mental health consultation, the Veteran noted that he had been fixing things around the house, but that bending down is difficult. However, he stated that he felt like he could work with his son on his business projects. In March 2020, the Veteran underwent a VA examination for peripheral nerve conditions. The Veteran reported intermittent lower back pain with numbness and tingling that radiated down both legs. He reported being unable to sit for more than 20 minutes, stand for more than 5 minutes, and was unable to bend. Also, in March 2020, the Veteran underwent another VA examination for back conditions. He reported severe intermittent low back pain with numbness, tingling, and radiation down his bilateral lower extremities. The examiner noted that the Veteran's service-connected back condition impacted his ability to sit more than 20 minutes, stand more than 5 minutes, or bend. A May 2020 VA primary care note indicated that the Veteran had been doing yard work and reported that his energy had improved. During his June 2020 Board hearing, the Veteran noted that he had constant back pain, numbness, pain, and tingling that radiated down both of his legs. Also, he noted that he had difficulty bending and sitting due to his back pain. The Veteran stated that he stopped working in August 2015 as he was unable to work with without restrictions. In September 2020, the Veteran underwent another VA examination. He reported constant lower back pain with intermittent pain, numbness, and tingling that radiated down both legs. His conditions caused the Veteran to avoid long periods of sitting and standing (30 minutes or less), avoid bending forward, avoid ambulating stairs, and he repositioned slowly from sitting to standing. In June 2021, the Veteran underwent another VA DBQ for back conditions. The Veteran reported constant back pain, as well as numbness and tingling from his back to his left leg. The examiner noted that the Veteran's service-connected back condition impacted his ability to bend and turn his back. In June 2021, a VA examiner found that the Veteran's epididymitis did not impact the Veteran's ability to work. Based on the above, considering his educational and occupational background with his service-connected disability, the Board finds credible the Veteran's testimony that his service-connected conditions precluded employment from December 21, 2016, the date the Veteran met the schedular criteria for a TDIU. In viewing the medical evidence of record, as well as the statements by the Veteran, the Board finds the evidence in its totality shows that employment is precluded due to the Veteran's lower back pain, bilateral lower extremity numbness and tingling, and tinnitus. The Veteran's former employer identified that the Veteran last worked on August 15, 2015. Although the record is replete with notations that the Veteran retired, the Board finds credible that the Veteran retired, in part, due to his service-connected back condition which caused pain and difficulty lifting, bending, and twisting. The Veteran is to be afforded every reasonable doubt. See 38 U.S.C. § 5107. Based on the foregoing, the Board finds that a TDIU is warranted from December 21, 2016. REASONS FOR REMAND 1. Entitlement to a TDIU prior to December 21, 2016 is remanded. Prior to December 21, 2016, the Veteran does not meet the schedular criteria for a TDIU. However, this does not preclude the Veteran from establishing entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 (b). As there is evidence that the Veteran's service-connected disabilities interfered with the Veteran's ability to maintain employment prior to December 21, 2016, the Board finds that remand of the Veteran's TDIU claim is required so that the AOJ can refer the matter to the Director of VA Compensation Service. The matters are REMANDED for the following action: 1. Refer the claim to the Director, Compensation Service, for consideration of whether a TDIU prior to December 21, 2016 on an extraschedular basis is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.