Citation Nr: 21066783 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 11-32 337 DATE: November 2, 2021 ORDER Prior to March 3, 2012, entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy is denied. From March 3, 2012, entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy is denied. Prior to March 3, 2012, entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy is denied. From March 3, 2012, entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy is denied. Prior to May 27, 2021, entitlement to a disability rating in excess of 20 percent for a back condition is denied. From May 27, 2021, entitlement to a disability rating in excess of 40 percent for a back disability is denied. Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities, is denied. FINDINGS OF FACT 1. Prior to March 3, 2012, the Veteran's right lower extremity radiculopathy more nearly approximated mild incomplete paralysis. It did not approximate moderate incomplete paralysis. 2. From March 3, 2012, the Veteran's right lower extremity radiculopathy more nearly approximated moderate incomplete paralysis. It did not approximate moderately severe incomplete paralysis. 3. Prior to March 3, 2012, the Veteran's left lower extremity radiculopathy more nearly approximated mild incomplete paralysis. It did not approximate moderate incomplete paralysis. 4. From March 3, 2012, the Veteran's left lower extremity radiculopathy more nearly approximated moderate incomplete paralysis. It did not approximate moderately severe incomplete paralysis. 5. Prior to May 27, 2021, the Veteran's back disability was characterized by forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees. It was not characterized by forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 6. From May 27, 2021, the Veteran's lumbosacral strain has been characterized by forward flexion of the thoracolumbar spine 30 degrees or less. It has not been characterized by unfavorable ankylosis of the entire thoracolumbar spine. He has never been prescribed bed rest. 7. The preponderance of the evidence shows that the Veteran's service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to March 3, 2012, the criteria have not been met for an initial rating in excess of 10 percent for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. From March 3, 2012, the criteria have not been met for a disability rating in excess of 20 percent for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, DC 8520. 3. Prior to March 3, 2012, the criteria have not been met for a rating in excess of 10 percent for left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, DC 8520. 4. From March 3, 2012, the criteria have not been met for a rating in excess of 20 percent for left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, DC 8520. 5. Prior to May 27, 2021, the criteria have not been met for a disability rating in excess of 20 percent for a back disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5237. 6. From May 27, 2021, the criteria have not been met for a disability rating in excess of 40 percent for a back disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5237. 7. The criteria have not been met for TDIU. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to November 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In April 2010, the Veteran disagreed with this decision. This case was previously before the Board in September 2016 and May 2020 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). In an August 2012 rating decision, the RO increased the Veteran's bilateral lower extremity radiculopathy ratings from 10 percent to 20 percent, effective March 3, 2012. Additionally, in a June 2021 rating decision, the RO increased his back disability from 20 percent to 40 percent, effective May 27, 2021. As these decisions do not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, 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. 1. Prior to March 3, 2012, entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy. 2. From March 3, 2012, entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy. 3. Prior to March 3, 2012, entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy. 4. From March 3, 2012, entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Under DC 8520, for paralysis of the sciatic nerve, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic. Id. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. Id. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Id. The maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve, characterized by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. The terms "mild," "moderate," "moderately severe," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Factual Background Prior to March 3, 2012 Prior to March 3, 2012, the Veteran's right and left lower extremity radiculopathy were both rated 10 percent disabling. The Veteran's bilateral lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, DC 8520. In an October 2011 VA examination report, the Veteran was diagnosed with bilateral lower extremity radiculopathy. The examiner noted that the Veteran's radiculopathy symptoms consisted of no constant pain in either lower extremity, mild intermittent pain in both lower extremities, no paresthesias and/or dysesthesias in either lower extremity, and no numbness in either lower extremity. The examiner reported that the Veteran had no other signs or symptoms of radiculopathy. The examination showed that the Veteran had involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on both sides. The VA examiner characterized the severity of the Veteran's bilateral lower extremity radiculopathy as mild. From March 3, 2012 In a March 2012 VA examination report, the Veteran had signs or symptoms attributed to radiculopathy. His radiculopathy symptoms consisted of mild constant pain in both lower extremities, no intermittent pain in either lower extremity, mild paresthesias and/or dysesthesias in both lower extremities, and mild numbness in both lower extremities. The examination showed that the Veteran had involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on both sides. The VA examiner characterized the severity of the Veteran's bilateral lower extremity radiculopathy as mild. In an April 2017 VA examination report, the Veteran was diagnosed with bilateral lower extremity radiculopathy. The Veteran reported that he still experienced radiculopathy symptoms that have persisted and worsened over time. He noted that his pain originated in his lower back and radiated down both his legs. The Veteran reported that he experienced pain more frequently than in the past and described it as "shooting" pain. He stated that he had to change his sleeping position at night because lying flat caused him more pain. The Veteran's radiculopathy symptoms consisted of moderate constant pain in the right lower extremity, no constant pain in the left lower extremity, moderate intermittent pain in both lower extremities, moderate paresthesias and/or dysesthesias in both lower extremities, and moderate numbness in both lower extremities. The Veteran had trophic changes attributable to his peripheral neuropathy. There was no hair on his right lower extremity and the skin was shiny. The examiner noted that the Veteran's left lower extremity had been amputated above the knee in 2016. The VA examiner characterized the severity of the Veteran's right lower extremity radiculopathy as moderately severe and characterized the left lower extremity as moderate. The Veteran used a wheelchair constantly and had peripheral vascular disease. The VA examiner noted that the Veteran's radiculopathy would impact his ability to work. The Veteran was unemployed, but he reported that his nerve pain required him to take medication that could be sedating. In a May 2019 VA examination report, the Veteran was diagnosed with bilateral lower extremity radiculopathy, and left leg status-post left above the knee amputation. The Veteran reported that he continued to have radiculopathy symptoms in both his legs. He stated that he experienced numbness, tingling and pain. He also noted that in 2016, he had his left lower leg amputated. The Veteran reported that although his left lower leg had been amputated, he still experienced radiculopathy symptoms in his phantom limb. He believed that his nerve pain had worsened. The Veteran's radiculopathy symptoms consisted of no constant pain in either lower extremity, moderate intermittent pain in both lower extremities, mild paresthesias and/or dysesthesias in both lower extremities, and mild numbness in both lower extremities. The VA examiner characterized the mild incomplete paralysis in the Veteran's sciatic nerves as mild bilaterally. The examination revealed that the Veteran's radiculopathy would impact his ability to work. The Veteran noted that if he sat for long periods of time, he developed numbness and pain in his lower extremities and that he had to shift his weight frequently. He also reported poor tolerance for standing for long periods of time on his left leg prosthesis due to that causing pain and numbness. The Veteran stated that he experienced weakness, numbness, and pain in his right leg that interfered with him standing for long periods of time. The Board notes that throughout the appeal period, the Veteran received medical treatment for his lower extremity radiculopathy. These treatment reports did not evaluate the nature, extent, and severity of his bilateral lower extremity radiculopathy during the appeal period. While not discussed further, the Board has reviewed them and taken them into consideration. Analysis Based on the above evidence, the Board concludes that prior to March 3, 2012, the date of the Veteran's VA examination, the Veteran's bilateral lower extremity radiculopathy warranted ratings of 10 percent. 38 C.F.R. § 4.124a, DC 8520. Prior to March 3, 2012, the Veteran's bilateral lower extremity radiculopathy more closely approximated "mild" incomplete paralysis of the sciatic nerve. From March 3, 2012, the date of his VA examination, the Board determines that 20 percent ratings are warranted for the Veteran's right and left lower extremity radiculopathy. Id. While the Board acknowledges that in the April 2017 VA examination report, the examiner characterized the Veteran's right lower extremity as "moderately severe," this VA examination report seems to be an aberration compared to all the other examinations he has had. Out of the four VA examinations the Veteran had, only one characterized the Veteran's right lower extremity as "moderately severe," and the examinations both before and after the April 2017 examination report characterized his right lower extremity as either "mild" or "moderate." Overall, the Veteran's bilateral lower extremity radiculopathy symptoms more nearly approximate "moderate" incomplete paralysis of the sciatic nerve. Id. The Veteran's symptoms did not more closely approximate "moderately severe" on a consistent basis. Id. The Board finds that the October 2011, March 2012, April 2017, and May 2019 VA treatment reports, describing the Veteran's bilateral lower extremity radiculopathy symptoms, are the most probative evidence of record because the examiners reviewed the claims file and provided detailed rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent (qualified) to observe his radiculopathy symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms, as reflected by the applicable VA diagnostic criteria. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his bilateral lower extremity radiculopathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Because of this, prior to March 3, 2012, an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. Additionally, prior to March 3, 2012, a disability rating in excess of 10 percent for left lower extremity radiculopathy is denied. From March 3, 2012, disability ratings in excess of 20 percent are also denied. 5. Prior to May 27, 2021, entitlement to a disability rating in excess of 20 percent for a back condition 6. From May 27, 2021, entitlement to a disability rating in excess of 40 percent for a back disability As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Legal Criteria Under DCs 5235 to 5243, 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 170 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. 38 C.F.R. § 4.71a, DCs 5235 to 5243. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. The maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These ratings are assigned for the above criteria with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. 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. Id. Disabilities of the spine involving intervertebral disc syndrome (IVDS) are assigned under DC 5243, which provides that the disability is to be rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. See 38 C.F.R. § 4.71a, Note. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See id. at Note (1). Effective February 7, 2021, the DCs pertaining to the lumbar spine were amended. For purposes of this decision, the applicable rating criteria for those DCs did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)). Consideration of a higher rating for functional loss, to include during flare-ups, due to the factors listed above is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under DCs pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. Factual Background The Veteran contends that his back disability is more severe than the 20 and 40 percent disability ratings assigned. Prior to May 27, 2021, the Veteran's back was rated 20 percent. From May 27, 2021, the Veteran's back was increased to 40 percent. The Veteran's back disability is rated under DC 5237. 38 C.F.R. § 4.71a, DC 5237, General Rating Formula for Diseases and Injuries of the Spine. Prior to May 27, 2021 In a February 2010 VA examination report, the Veteran reported pain that radiated down from his back into his legs in what the examiner called a radicular-type pattern. The Veteran stated that the pain was equal in both his back and legs. He reported occasional numbness in both legs. He noted that he used both a lumbar corset as well as a rolling walker. The Veteran reported that he could walk less than 15 minutes or 50 feet before he had to stop due to pain. He noted that he had flare-ups when he walked, stood, or bent over. The Veteran reported that this pain affected his daily activities. He was not currently working and had had no prescribed bedrest in the past 12 months. On examination, range of motion (ROM) was forward flexion to 50 degrees, extension to 20 degrees, right and left lateral rotation to 20 degrees, and right and left lateral flexion to 20 degrees. The Veteran reported pain during all motions. He had no additional loss of ROM or functional impairment with repetition. In an October 2011 VA examination report, the Veteran was diagnosed with spondylosis L5-S1. The Veteran reported flare-ups which impacted the function of his back and that affected him while standing, bending, and walking. He noted that this was relieved by sitting and resting. During the examination, initial ROM was forward flexion to 65 degrees with objective evidence of painful motion beginning at 45 degrees, extension to 5 degrees, right and left lateral flexion to 15 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. The VA examiner noted that the Veteran's age and body habitus led to his ROM problems. The Veteran was able to perform repetitive-use testing and there was no additional limitation of ROM. The Veteran had functional loss and/or functional impairment characterized as less movement than normal, weakened movement, and pain on movement. He had localized tenderness or pain to palpation described as "TTP paraspinal muscle from L2-L5." The Veteran had no guarding, muscle spasm, or muscle atrophy. He was not diagnosed with intervertebral disc syndrome (IVDS). The Veteran used a walker regularly. Imaging studies were available, and arthritis was documented, but the Veteran did not have a vertebral fracture. The examiner noted that the Veteran's back condition would not impact his ability to work. In a March 2012 VA examination report, the Veteran was diagnosed with L5-S1 spondylosis. The Veteran reported back pain that had worsened with age, as well as some leg pain, which he described as mild. The Veteran reported flare-ups which impacted the function of his back while walking. During the examination, initial ROM was forward flexion to 85 degrees, extension to 25 degrees, right lateral flexion to 30 degrees or greater, left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 30 degrees or greater. There was no objective evidence of painful motion on any movement. The Veteran was able to perform repetitive-use testing. He had no additional limitation in ROM and no functional loss or functional impairment. The Veteran had localized tenderness or pain on palpation. He had no guarding, muscle spasm, or muscle atrophy. The Veteran was not diagnosed with IVDS. He used a brace regularly. Imaging studies were performed, arthritis was documented, but he did not have a vertebral fracture. The VA examiner noted that the Veteran's back disability impacted his ability to work and noted that the Veteran was not working, but that his back pain interfered with his attempts to work. In a May 2019 VA examination report, the Veteran was diagnosed with degenerative arthritis of the spine. The Veteran stated that he thought his back symptoms had gotten worse. He had lower back pain that radiated down to his bilateral lower extremities. The Veteran reported flare-ups described as being caused by sitting for long periods of time. He noted that the frequency was daily, the severity was 10 out of 10, and the duration was for one hour. The Veteran also reported functional loss or functional impairment described as being unable to bend over, stand, stoop, bend, run, or jump because of back pain. On examination, initial ROM was abnormal or outside of the normal range. Forward flexion was to 85 degrees, extension was to 30 degrees, right and left lateral flexion was to 30 degrees, and right and left lateral rotation was to 0 degrees. The examiner noted that ROM itself did not contribute to functional loss. Pain was noted on the examination and caused functional loss during all motions of the back. There was no evidence of pain with weight bearing. However, there was evidence of tenderness located in the lower back at L5 that was a 9 out of 10 in severity. The Veteran was able to perform repetitive-use testing and there was no additional loss of function or ROM after three repetitions. He was examined immediately after repetitive use over time. The examiner did not give an opinion as to whether the examination was consistent with the Veteran's statements. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. The examiner noted that there was no basis to offer additional loss of function or motion with repeated use over time because the Veteran's ROM was not affected after three repetitions. The Veteran's examination was conducted dure a flare up. The examiner did not comment if it was consistent with the Veteran's statements concerning his flare ups. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare up. The examiner had no basis to offer additional loss of function or motion during flare ups because the Veteran's ROM was not affected by them. The Veteran had muscle spasm not resulting in an abnormal gait or abnormal spinal contour. He had no guarding. There were no additional factors contributing to his disability. The Veteran was not diagnosed with ankylosis or IVDS. He used a wheelchair and brace regularly as well as a left prosthetic leg occasionally. Imaging studies were available, arthritis was documented, but there was no vertebral fracture. The VA examiner noted that the Veteran's back condition would impact his ability to work. The Veteran was a medically retired x-ray technician. He had "0-1 work time lost in last 12 months." The Veteran reported that sitting for long periods of time caused his lower back pain. Additionally, standing for long durations caused lower back pain and numbness that radiated into his legs. Lifting over 10lbs caused lower back pain. Finally, the Veteran noted that his radiculopathy pain radiated from his back into his right lower extremity and caused weakness which interfered with standing for long periods of time. The VA examiner noted that measurements were taken of the Veteran's back with a goniometer while he sat in his wheelchair. The Veteran was unable to stand due to a left above the knee amputation. He was able to "scoot" to the edge of his chair safely to perform ROM measurements. However, due to his fear of falling, the Veteran was unable to perform right and left rotation. Concerning the Correia criteria, passive ROM of the spine was not performed as it was not feasible to do in a safe and reasonable manner. Non-weight bearing assessment was not applicable. From May 27, 2021 In a May 2021 VA examination report, the Veteran was diagnosed with degenerative arthritis and IVDS. The Veteran reported that he was unable to walk because his lower back pain had worsened. He stated that he fell three times trying to get into his truck. The Veteran noted that he continued to experience sharp pain in his lower back that radiated into his lower extremities. He stated that when he bent over or rolled over in bed, he had lower back pain. The Veteran reported that sitting in his motorized wheelchair caused his lower back to hurt. He noted that he just dealt with the pain and was unable to do any household chores because of his lower back pain. The Veteran stated that he could not ride in vehicles for long periods of time, and that bending over in his wheelchair without his safety belt on caused him to fall out. He reported that his current symptoms included lower back pain and bilateral lower extremity radiculopathy. The Veteran did not report flare-ups. He reported functional loss or functional impairment characterized as being unable to ride in vehicles for long periods of time and unable to sit in his wheelchair for long periods of time. The Veteran stated that if he did not wear his safety belt, he would fall out of his wheelchair. On examination, initial ROM was abnormal or outside of the normal range. The examiner noted that testing could not be performed because the Veteran reported that his lower back pain prevented him from bending, and that he could not stand without falling. The Veteran stated that repeated movements in his wheelchair were going to cause his back to hurt more. The examiner noted that the Veteran had had an above the knee left amputation and did not bring his left leg prosthesis to the examination. There was no evidence of pain and no objective evidence of localized tenderness or pain on palpation. The Veteran was not able to perform repetitive use testing with at least three repetitions. He was not being examined immediately after repeated use over time. Pain significantly limited functional ability with repeated use over time. Additionally, pain caused functional loss. The VA examiner estimated that the Veteran's ROM was forward flexion to 0 degrees, extension to 0 degrees, right and left lateral flexion to 0 degrees, and right and left lateral rotation to 0 degrees. The Veteran reported that the more he moved his back, the more it hurt. The Veteran was not examined during a flare-up. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The examiner noted that the Veteran denied flare-ups of his back. The Veteran had no guarding, muscle spasm, or muscle atrophy. He was not diagnosed with ankylosis. The Veteran was diagnosed with IVDS, but he had had no prescribed bed rest in the past 12 months. The Veteran used a wheelchair and brace constantly. The VA examiner noted that the Veteran's back disability impacted his ability to work. The Veteran was a retired disabled x-ray technician. He stated he was unable to stand, bend, lift, or sit for prolonged periods of time because of his lower back pain. The Veteran noted that his right leg was weak and gave out. When he wore his left leg prosthetic, he had sharp pains radiating to his thigh, which prevented him from standing on the leg. The Board notes that throughout the appeal period, the Veteran received medical treatment for his back. These treatment reports did not evaluate the nature, extent, and severity of his back disability during the appeal period. While not discussed further, the Board has reviewed them and taken them into consideration. Analysis Based on this evidence, prior to May 27, 2021, the assigned 20 percent rating for the Veteran's back condition fully contemplates his range of motion and all muscle spasm and gait symptoms. The Veteran's forward flexion was at worst to 45 degrees, as shown in the October 2011 VA examination report. 38 C.F.R. § 4.71a, DC 5242-5235. Prior to May 27, 2021, the Veteran's back disability was never characterized by forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Additionally, he was never prescribed bed rest. Id. Prior to May 27, 2021, his symptoms do not approximate a disability rating in excess of 20 percent. Id. From May 27, 2021, the assigned 40 percent rating for the Veteran's back condition fully contemplates his range of motion and all muscle spasm and gait symptoms. The Veteran's forward flexion was at worst to 0 degrees, as shown in the May 2021 VA examination report. 38 C.F.R. § 4.71a, DC 5242-5235. From May 27, 2021, the Veteran's back disability was never characterized by unfavorable ankylosis of the entire thoracolumbar spine. Additionally, while he was diagnosed with IVDS, he has never been prescribed bed rest. Id. Because of this, from May 27, 2021, his symptoms do not approximate a disability rating in excess of 40 percent. Id. The Board finds that the February 2010, October 2011, March 2012, May 2019, and May 2021 VA examination reports, describing the Veteran's back symptoms, are the most probative evidence of record because the examiners reviewed the claims file and provided detailed rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board notes that some of these examinations might not be Correia and Sharp compliant. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, despite this, the Veteran's back symptoms have had a consistent trajectory throughout the appeal period, up until the May 2021 examination, which did conform to Correia and Sharp. Id. While the Veteran is competent (qualified) to observe his back symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms, as reflected by the applicable VA diagnostic criteria. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his back disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the reports of constant pain associated with the Veteran's back disability. The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 concerning functional loss due to pain, fatigue, weakness, lack of endurance, incoordination, and flare-ups have been considered in this analysis. See DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995), 38 C.F.R. § 4.71a, DC 5237-5243. However, the General Formula for disabilities of the spine expressly states that the criteria and ratings apply "with or without symptoms such as pain." See 38 C.F.R. § 4.71a, General Rating Formula. Because of this, the presence of pain is already considered within the currently assigned disability ratings. 68 Fed. Red. 51454 (Aug. 27, 2003) ("Pain is often the primary factor limiting motion, for example, and is almost always present where there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and consider the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine."). The preponderance of the evidence is against a finding that the Veteran's back disability warrants a rating in excess of 20 percent prior to May 27, 2021, and in excess of 40 percent from May 27, 2021, and the claim must be denied. Neither the Veteran nor his agent have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board will address the Veteran's claim for a TDIU below. The Board is sympathetic to the Veteran's reports and understands that his back disability and bilateral lower extremity radiculopathy have significant effects on his daily life. However, his symptoms more nearly approximate the assigned ratings in this decision. The Board also notes that this decision does not leave the Veteran without recourse. If his disabilities should worsen in the future, he is free to file claims for increased disability ratings at that time. TDIU Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. Legal Criteria Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.34; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. TDIU 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). While the regulations do not provide a definition of "substantially gainful employment," the VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income..." In this case, the Veteran is service connected for spondylosis L5-S1 rated as 40 percent disabling, right lower extremity radiculopathy rated as 10 percent disabling, and left lower extremity radiculopathy rated as 10 percent disabling. The Veteran's combined disability rating is 50 percent from March 3, 2012 and 60 percent from May 27, 2021. From May 27, 2021, the Veteran meets the criteria for consideration under 38 C.F.R.§ 4.16(a), as his back disability and bilateral lower extremity radiculopathy stem result from a common etiology and combine to 60 percent. Despite that, the question that remains is whether his service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a February 2010 VA back examination report, the Veteran stated that his back affected daily activities and he had pain with normal standing and walking. He noted that he was not working. In an October 2011 VA back examination report, the Veteran reported flare-ups which impacted his back every day. He noted that he had problems standing, bending, and walking. The VA examiner reported that the Veteran's back condition would have no functional impact on his ability to work. In a March 2012 VA back examination report, the Veteran noted that his back pain was getting worse with age and he had some leg pain as well. He stated flare-ups which impacted his ability to walk. The VA examiner reported that the Veteran's back impacted his ability to work in that he was not working, but that the pain interfered with his attempts to work. In an April 2017 VA peripheral nerves examination report, the Veteran stated that he experienced radiculopathy symptoms that have persisted and worsened. He noted that the pain originated in his lower back and radiated down both legs. The VA examiner reported that the Veteran's radiculopathy would impact his ability to work. The Veteran was unemployed and reported nerve pain that required medication that could be sedating, in order to provide relief for his pain. Because of an above the left knee amputation in 2016, the Veteran was wheelchair bound. In a May 2019 VA peripheral nerves examination report, the Veteran stated that he continued to have bilateral radiculopathy in both legs and that he experienced numbness, tingling, and pain. The VA examiner reported that the Veteran was medically retired, but used to work as an x-ray technician. The Veteran's bilateral lower extremity radiculopathy impacted his ability to work in that if he sat for long periods of time, this caused numbness and pain in his lower extremities. The Veteran had to shift his weight frequently. He had poor tolerance for standing for long periods of time due to his left leg prosthesis. The Veteran reported that he had weakness, numbness, and pain in his right leg that prevented him from standing for long periods of time. In a separate May 2019 VA opinion specifically concerning TDIU, the VA examiner opined that it was at least as likely probable that the Veteran could sit occasionally for 1/3 of a day to perform sedentary work. According to the VA examiner, the Veteran was able to shift from side to side in his wheelchair, had good upper body strength, and was able to maneuver. The Veteran was not ambulatory during the day of the examination because he did not wear his prosthetic left leg. The VA examiner noted that he could not say without speculation that the Veteran's gait was stable or that standing could be performed safely in a work environment due to a loss of strength in the right lower extremity, and reports of pain, numbness, and tingling in the left lower extremity. In a May 2019 VA back examination report, the Veteran stated that he had lower back pain that radiated down into his bilateral lower extremities. The VA examiner reported that the Veteran's back condition impacted his ability to work. The Veteran noted that if he sat for long periods of time, he developed lower back pain. Additionally, standing for long durations caused lower back pain and numbness that radiated down into his legs. Lifting over 10 lbs. also caused lower back pain. His lower extremity radiculopathy caused weakness and interfered with standing for long durations. In a separate May 2019 VA opinion specifically concerning TDIU, the VA examiner opined that it was at least as likely as not that the Veteran could work for 1/3 of the day due to his back condition. However, the examiner was unable to determine the Veteran's tolerance for standing and walking because he did not bring his left leg prosthesis to the examination and was unable to stand or walk. He was able to maneuver his electric wheelchair independently to designated areas. The Veteran had good upper body strength and was able to bend forward, flex right and left while in his wheelchair. In a May 2021 VA back examination report, the Veteran stated that he was unable to walk because of his lower back pain. He noted that he had fallen three times trying to get into his truck. The Veteran reported that he continued to experience sharp pain in his lower back that radiated into his lower extremities. He noted that when he bent over or rolled over in bed, his lower back hurt. Additionally, the Veteran stated that sitting in his motorized wheelchair caused his back to hurt. He noted that he just dealt with his lower back pain and was unable to do any household chores. The VA examiner reported that the Veteran's back impacted his ability to work. The Veteran was medically retired, but before that, he was an x-ray technician. The Veteran was unable to stand, bend, lift, or sit for prolonged periods of time because of his lower back pain. Additionally, his right leg was weak and gave out. When he wore his prosthetic left leg, he had sharp pain radiating down into his thigh which prevented him from standing on the leg. In a May 2021 VA peripheral nerves examination report, the Veteran stated that he had nerve pain in his lower back and extremities. He noted that he had weakness in his right leg and required assistance standing. The Veteran stated that he had sharp pain in his lower extremities when he stood. The VA examiner reported that the Veteran's lower extremity radiculopathy affected his ability to work. When he stood on his right leg, it would give out. When he wore his left leg prosthesis, he developed sharp shooting pain that prevented him from standing. In a separate May 2021 VA opinion specifically concerning TDIU, the VA examiner opined that it was at least as likely as not that the Veteran could perform sedentary work. The examiner reported that the Veteran could exert up to 10 lbs. of force occasionally and/or a negligible amount of force frequently to lift, carry, push, or pull. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods. Jobs are sedentary if walking and standing are required only occasionally, and all other sedentary criteria are met. Based upon the evidence of record, the Board finds the Veteran's service-connected disabilities are not shown to be so disabling as to preclude him from securing or following substantially gainful employment in keeping with his education and occupational experience. As noted above, substantially gainful employment is "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income..." Faust v. West, 13 Vet. App. 342 (2000). The Board finds that the February 2010, October 2011, March 2012, April 2017, and May 2021 VA examination reports, describing the impact the Veteran's service-connected disabilities have on his ability to obtain or engage in substantially gainful employment, to be the most probative evidence of record, as the examiners reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, supra. The Board notes that while the May 2019 opinion noted that the Veteran could only sit for 1/3 of the day because of his disabilities, no rationale was provided. Additionally, in determining that the Veteran could only sit for 1/3 of the day, the examiner took into account that the Veteran was wheelchair bound, as a result of his above the left knee amputation, which is not service connected. The Veteran is competent to observe his service-connected disability symptoms, but he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms and their impact on his ability to secure and maintain all forms of substantially gainful employment. See Jandreau v. Nicholson, supra. Because a preponderance of the evidence is against assigning a TDIU in this case, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b). Therefore, the claim of entitlement to TDIU must be denied. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.