Citation Nr: 21066797 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-36 147 DATE: November 2, 2021 ORDER An evaluation in excess of 10 percent for traumatic brain injury (TBI) residuals is denied. Entitlement to an evaluation in excess of 30 percent prior to March 2, 2017 for migraine headaches is denied. Entitlement to an evaluation in excess of 50 percent from March 2, 2017 for migraine headaches is denied. Entitlement to an evaluation in excess of 20 percent for sacroiliitis and intervertebral disc syndrome (IVDS) is denied. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the right lower extremity is denied. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity is denied. Entitlement to an effective date earlier than February 20, 2017 for an award of service connection for radiculopathy of the right lower extremity is denied. Entitlement to an effective date of August 27, 2014, but no earlier, for an award of service connection for radiculopathy of the left lower extremity is granted. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's TBI is not productive of objective evidence on testing of impairment of memory, attention, concentration, or executive functions; impaired judgment; inappropriate social interaction; disorientation; motor activity at least mildly decreased or with at least moderate slowing due to apraxia; visual spatial orientation at least moderately impaired; subjective symptoms (other than those separately rated) that moderately interfere with function; neurobehavioral effects that at least frequently interfere with interaction; more than occasional inability to communicate or comprehend; or persistently altered stated of consciousness. 2. Prior to March 2, 2017, the Veteran's migraine headaches were not productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From March 2, 2017, the Veteran's migraine headaches have caused very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; these symptoms are contemplated by the applicable rating criteria. 4. The Veteran's lumbosacral spine disability is not productive of ankylosis, incapacitating episodes of at least 4 weeks over a 12-month period, forward flexion limited to 30 degrees or less, or the functional equivalent thereof. 5. The Veteran's radiculopathy of the right lower extremity is not productive of the equivalent of complete paralysis of the sciatic nerve or incomplete paralysis that was moderately severe or severe. 6. The Veteran's radiculopathy of the left lower extremity is not productive of the equivalent of complete paralysis of the sciatic nerve or incomplete paralysis that was moderately severe or severe. 7. The Veteran's radiculopathy of the right lower extremity is not evident prior to February 20, 2017. 8. The Veteran's radiculopathy of the left lower extremity became evident on August 27, 2014, but no earlier. 9. The Veteran's service-connected disabilities have not rendered her unemployable or unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for TBI residuals are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2020). 2. The criteria for an evaluation in excess of 30 percent prior to March 2, 2017 for migraine headaches are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2020). 3. The criteria for an evaluation in excess of 50 percent from March 2, 2017 for migraine headaches are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2020). 4. The criteria for an evaluation in excess of 20 percent for sacroiliitis and IVDS are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). 5. The criteria for an evaluation in excess of 20 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). 6. The criteria for an evaluation in excess of 20 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). 7. The criteria for an effective date prior to February 20, 2017, for an award of service connection for radiculopathy of the right lower extremity are not met. 38 U.S.C. § 5110 (2018); 38 C.F.R. § 3.400 (2020). 8. The criteria for an effective date of August 27, 2014, but no earlier, for an award of service connection for radiculopathy of the left lower extremity are met. 38 U.S.C. § 5110 (2018); 38 C.F.R. § 3.400 (2020). 9. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2008 to October 2011. This appeal is before the Board of Veterans' Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Inasmuch as the migraine headaches are a manifestation of the TBI, the issue of entitlement to an increased rating for migraine headaches is included within the scope of the TBI rating on appeal. Similarly, the issues of entitlement to an initial increased rating for bilateral lower extremity radiculopathy and an earlier effective date for service connection for bilateral lower extremity radiculopathy are included within the scope of the sacroiliitis rating on appeal. See Chavis v. McDonough, 34 Vet. App. 1 (2021). The appeal period for these issues is from March 26, 2013, the date the Veteran's TBI increased rating claim was received. In February 2020 the Board remanded the Veteran's appeal with instruction to readjudicate the claims considering new evidence and to obtain updated information about her employment. She was requested to supply updated employment information in a March 2020 letter; she did not reply. A supplemental statement of the case considering the new evidence was issued in May 2020. The Board is therefore satisfied that the instructions in its February 2020 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Under 38 C.F.R. § 3.321 (b)(1), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities is made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1). The United States Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability must be in the interest of justice. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 1. Entitlement to an evaluation in excess of 10 percent for TBI residuals The Veteran claims an increased rating for her TBI residuals. TBI residuals are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8045, based on three main areas of dysfunction: Cognitive, emotional/behavioral, and physical. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified ("TBI Table"). Subjective symptoms are to be evaluated under the subjective facet of the TBI Table whether or not they are part of cognitive impairment, unless they have a distinct diagnosis that may be evaluated under a separate diagnostic code, such as Meniere's disease or migraine headaches. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, such dysfunction is to be evaluated under the TBI Table. Physical and neurological dysfunction is to be evaluated separately under the appropriate diagnostic code. The TBI Table contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th highest level of impairment labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. The 10 cognitive impairment facets are: consciousness, communication, neurobehavioral effects, subjective symptoms, visual spatial orientation, motor activity, orientation, social interaction, judgment, and one facet encompassing memory, attention, concentration, and executive function. There may be an overlap of manifestations of conditions evaluated under the TBI Table with manifestations of a comorbid mental or neurologic disorder or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, no more than one evaluation is to be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, a separate evaluation is assigned for each condition. Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Instrumental activities of daily living refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from activities of daily living, which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. The terms mild, moderate, and severe TBI, which may appear in medical records, refer to a classification of a TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. The Veteran underwent a VA examination in February 2014. She reported headaches and tinnitus related to her TBI. She reported a history of sleep disturbances that had resolved. There were no complaints of impairment of memory, attention, concentration, or executive functions. Judgment was normal and social interaction was routinely appropriate. She was always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was mildly impaired, with a poor sense of direction. The examiner noted "this has always been the case and is not related to the history of TBI" and that she was able to use GPS. She had mild headaches that are relieved with medication and did not interfere with daily activities. There were no neurobehavioral effects. She was able to comprehend and communicate by spoken and written language. Her consciousness was normal. The examiner diagnosed TBI residuals with no functional impact on her ability to work. In a September 2014 statement, the Veteran reported that she has problems with concentration and memory. She stated that she often gets lost and sometimes cannot properly program her GPS to get her where she wants. She reported dizzy spells and difficulty sleeping. She stated that she "drifts" while having conversations. In her October 2014 notice of disagreement, the Veteran reported that she still had trouble sleeping. She stated that she gets lost, forgets, and gets nervous when speaking about the past. She reported falling asleep while driving. The Veteran underwent another VA examination in February 2017. She reported that she was currently working 20 hours per week for a bank. She stated that she thinks she has short term memory problems. Specifically, the examiner noted "she has a subjective feeling that she cannot remember things and has to depend on her check list." She reported poor balance. The examiner found a complaint of mild memory loss, specifically forgetting conversations and having to make lists. Judgment was normal and social interaction was routinely appropriate. She was always oriented to person, time, place, and situation. Motor activity was normal most of the time, but mildly slowed at times due to apraxia. Visual spatial orientation was normal. She had headaches and tinnitus which mildly interfered with work or daily activities. There were no neurobehavioral effects. She was able to comprehend and communicate by spoken and written language. Her consciousness was normal. The examiner diagnosed TBI residuals with no functional impact on her ability to work. The Veteran underwent another VA examination in October 2018. She reported residual headaches from her TBI. There were no complaints of impairment of memory, attention, concentration, or executive functions. Judgment was normal and social interaction was routinely appropriate. She was always oriented to person, time, place, and situation. Motor activity was normal. Visual spatial orientation was normal. She had headaches twice per week lasting a couple of hours which did not interfere with work or daily activities. There were no neurobehavioral effects. She was able to comprehend and communicate by spoken and written language. Her consciousness was normal. The examiner diagnosed TBI residuals with functional impact on her ability to work. Specifically, the Veteran stated she was let go from her last job as they were unable to accommodate her doctor's restriction to 20 hours of work per week. The Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's TBI residuals. Higher ratings are available for objective evidence on testing of impairment of memory, attention, concentration, or executive functions; impaired judgment; inappropriate social interaction; disorientation; motor activity at least mildly decreased or with at least moderate slowing due to apraxia; visual spatial orientation at least moderately impaired; subjective symptoms that moderately interfere with function; neurobehavioral effects that at least frequently interfere with interaction; more than occasional inability to communicate or comprehend; or persistently altered stated of consciousness. The evidence weighs against such residuals. There is no evidence in the record of impaired judgement, inappropriate social interaction, disorientation, neurobehavioral effects, impaired communication, or persistently altered consciousness. Her reported symptoms relating to memory, attention, concentration, or executive function are subjective and not supported by objective testing. The only evidence of impaired motor activity was a finding of mild slowing by the February 2017 VA examiner. There is no evidence of moderate slowing or mildly decreased activity; indeed, the other examiners found no impairment at all. The only evidence of impaired visual spatial orientation was a finding of mild impairment by the February 2014 VA examiner. There is no evidence of moderate impairment, and subsequent examiners found no impairment at all. While she has reported subjective symptoms, these consist of headaches and tinnitus, disabilities for which she is separately rated at a higher level than she would be if such symptoms were given the maximum 30 percent rating for subjective symptoms as TBI residuals. For these reasons, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's TBI residuals. 2. Entitlement to an evaluation in excess of 30 percent prior to March 2, 2017 for migraine headaches 3. Entitlement to an evaluation in excess of 50 percent from March 2, 2017 for migraine headaches The Veteran claims increases to her ratings for migraine headaches. The Veteran's headaches are rated as migraine headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under this code, her prior 30 percent rating was warranted for headaches with characteristic prostrating attacks occurring on an average once a month over a period of several months. Her current rating of 50 percent is the maximum rating available and is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. VA treatment records reflect that in July 2013 the Veteran reported migraine headaches which involved dizziness and seeing dots in front of her eyes. She reported headaches at least twice a week. She was diagnosed with migraine headaches, intermittent in nature. The Veteran underwent a VA examination in February 2014. She was diagnosed with migraine headaches. She reported migraines twice per week, lasting for hours unless she takes ibuprofen that shortens them to 30 minutes. The headaches included pulsing or throbbing head pain localized on one side of the head and photophobia, and they were prostrating about half the time. The examiner noted characteristic prostrating attacks more frequently than once per month but not very frequent prolonged attacks. The examiner found that headaches did not impact the Veteran's ability to work. Private treatment records reflect that in February 2014 the Veteran reported migraines two to three times per week, worse with stress and painful behind the eyes. She stated that they sometimes last three hours. She denied auras. The Veteran underwent another VA examination on March 2, 2017. She reported headaches mainly in the early morning hours and evenings. She stated when she closed her eyes, she felt intense pounding pain and sensitivity to light, and she reported changes in vision. She stated that she had to leave work due to extreme pain and vomiting. Headaches lasted up to one week. She was diagnosed with post-concussion syndrome migraine headaches. The examiner found very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. Specifically, headaches resulted in partial impairment of physical and cognitive activities of employment during periods of severe prostrating attacks, which occurred more than once per month. The Veteran underwent another VA examination in October 2018. She reported migraines almost weekly, with the sun hurting her eyes and throbbing pain caused by walking. She reported nausea, vomiting, sensitivity to light and sounds, aura, and sensory changes. Headaches lasted 1-2 days. The examiner found very prostrating and prolonged attacks of migraines causing severe economic inadaptability. Specifically, the examiner noted partial impairment of physical and cognitive activities of employment during periods of severe prostrating migraine headaches. For the period prior to March 2, 2017, the Board finds that an evaluation in excess of 30 percent is not warranted for the Veteran's migraine headaches. Higher ratings are available for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The evidence weighs against headaches of such severity. While the Veteran consistently reported headaches twice weekly, she stated that they were prostrating about half the time. The February 2014 VA examiner explicitly found that she did not experience very frequent prolonged prostrating attacks, and there is no evidence in the record to contradict this finding prior to March 2, 2017. For these reasons, the Board finds that a rating in excess of 30 percent is not warranted prior to March 2, 2017. For the period from March 2, 2017, the Board finds that an evaluation in excess of 50 percent is not warranted for the Veteran's migraine headaches. She is already in receipt of the maximum schedular rating for this period, and she does not explain how the totality of her migraine symptoms exceed the maximum criteria in DC 8100. While the rating criteria do not include the specific symptoms the Veteran experiences due to her migraine headaches, such as dizziness, nausea, vomiting, vision loss and sensitivity to light and sound, the criteria for headaches include the nature and duration of the migraine headache attacks that would encompass all of the above-named symptoms experienced during such attacks, and their effect on economic adaptability. See Holmes v. Wilkie, No. 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131 (Nov. 25, 2020). Here, the schedular 50 percent rating from March 2, 2017 is assigned based on the severity, frequency, and duration of the symptoms demonstrated by the competent lay and medical evidence throughout the appeal period. Therefore, the criteria for rating headaches are broad enough to encompass all of the Veteran's symptoms. The first element under Thun is thus not met and the Board does not need to consider the second element of whether there are related factors such as marked interference with employment or frequent periods of hospitalization. An increased rating for migraine headaches is therefore denied. 4. Entitlement to an evaluation in excess of 20 percent for sacroiliitis and IVDS 5. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the right lower extremity 6. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity The Veteran claims an increased rating for her lumbosacral spine disability and associated radiculopathy. The Veteran is currently in receipt of a 20 percent disability rating for her service-connected lumbosacral spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5243, IVDS. IVDS is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or under the Formula for Rating IVDS Based on Incapacitating Episodes ("IVDS Formula"), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See VBA Training Letter 02-04 (October 24, 2002). Under the General Formula, her current rating of 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; for combined range of motion of the thoracolumbar spine not greater than 120 degrees; or for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is assignable for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Also under the General Formula, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. The Veteran is currently in receipt of two 20 percent ratings for radiculopathy of each of the lower extremities, manifested by paralysis of the sciatic nerve, evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this code, an evaluation of 10 percent is warranted for mild incomplete paralysis, an evaluation of 20 percent is warranted for moderate incomplete paralysis, an evaluation of 40 percent is warranted for moderately severe incomplete paralysis, an evaluation of 60 percent is warranted for severe incomplete paralysis with marked muscular atrophy, and an evaluation of 80 percent is warranted for complete paralysis. Complete paralysis of the sciatic nerve causes the foot to dangle and drop, with no active movement possible of the muscles below the knee, and with flexion of the knee weakened or (very rarely) lost. When involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating the peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. A 10 percent is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent 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 is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the claimant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. With respect to disabilities of the lumbar spine, the February 2021 changes limited the circumstances under which a code for IVDS could be assigned and limited alternative criteria to degenerative or traumatic arthritis. The Board finds that there is no scenario under which the amended criteria could be more favorable to the Veteran, and as such will analyze her appeal under the criteria in effect prior to February 7, 2021. VA treatment records reflect that in July 2013 the Veteran reported sharp, aching, dull pain rated at 8/10, worsened by prolonged standing. X-rays showed mild hyperlordosis and mild sclerosis of the right sacroiliac joint. In December 2013 she began physical therapy. Active range of motion was within functional limits with some pain noted during extension. There was mild paraspinal tenderness and tenderness over the left sacroiliac joint. Straight leg raising was negative. The Veteran underwent a VA examination in February 2014. She reported pain when picking up her child. She reported an inability to sit or stand for long periods and frequently had to change positions to relieve her pain. She described flare-ups two to three times per week lasting five hours. Forward flexion was full to 90 degrees with pain thereat. Extension was limited to 15 degrees with pain thereat. Left lateral flexion was full to 30 degrees without pain. Right lateral flexion and lateral rotation in both directions were full to 30 degrees with pain thereat. Right lateral flexion was limited to 20 degrees with repetitive testing; all other ranges were unaffected. Repetitive testing caused functional loss with contributing factors of pain on movement and less movement than normal. The examiner found that it was speculative to state what ranges of motion would be during flare-ups or after repeated use over time. There was pain to palpation of the sacroiliitis joint. There was no muscle spasm or guarding. Muscle strength was full without atrophy. Reflex and sensory examination was normal. Straight leg raising was negative. There were no signs or symptoms of radiculopathy or any other neurologic abnormality. There was no ankylosis. The examiner found no IVDS. She was diagnosed with sacroiliitis. In a February 2014 statement, the Veteran reported severe pain on the left side, with a hard time sitting for long periods especially when driving a car. She reported that standing for more than two hours makes it hard for her to even bend over or sit down. Private treatment records reflect that in February 2014 the Veteran exhibited sacroiliac dysfunction and mild scoliosis of the lumbar spine. She denied numbness, tingling, or bowel or bladder incontinence. Sensation was intact to touch throughout. Gait was normal. In August 2014 she presented to the emergency room to be treated for back pain. Her treating physician wrote a letter for her indicating that she could return to work after four days. In another August 2014 letter, her private treating physician requested that her employer allow her to take frequent breaks during work due to mild scoliosis and sacroiliac dysfunction, as she was unable to sit or stand for long periods of time. One week later, the same physician wrote a letter asking the same thing, stating that she was unable to sit or stand for longer than one hour at a time. VA treatment records reflect that on August 27, 2014 the Veteran presented to the emergency room reporting back and hip pain. She reported lower back pain for two weeks that radiated down her left leg. She was instructed to try sleeping on a hard surface for the next two nights and to ensure that her work chair meets her posture needs. X-rays were normal. Her physician supplied a letter indicating that she is unable to work for two days. In a September 2014 letter, the Veteran's private treating physician stated that she was seen that day and was unable to return to work at this time because she needs to be on bed rest for a back injury until she is cleared by pain management, with an appointment pending. In an October 2014 letter, the Veteran's private treating physician stated that she had been suffering flare-ups of her back condition which required bed rest. The physician stated that she should refrain from work or performing duties that would place more strain on her injuries at this time. In her October 2014 notice of disagreement, the Veteran reported that sitting, standing, or bending for periods longer than one hour causes pain. She reported flare-ups worse at night and during cold weather. Private treatment records reflect that in April 2015 the Veteran reported back pain and was prescribed bed rest for 20 days. Her physician wrote a letter excusing her from work. The Veteran underwent another VA examination on February 20, 2017. She reported constant back spasms. She stated that she was out of work for three months and would not be back until September. She reported pain when walking long periods, standing more than two hours, and bending and picking up items. She reported regular use of a back brace. Flare-ups were described as severe lower left back pain when sitting. Forward flexion was limited to 65 degrees. Extension was limited to 20 degrees. Lateral flexion and lateral rotation were limited to 25 degrees in both directions. Pain was noted in all ranges except extension. There was objective evidence of localized tenderness resulting in abnormal gait or contour. Repetitive testing further reduced forward flexion to 50 degrees, left lateral rotation to 15 degrees, and all other ranges to 20 degrees. Contributing factors to functional loss were pain and weakness. The examiner was unable to estimate functional loss during flare-ups or after repeated use over time in terms of ranges of motion because she was not examined under such conditions. There was no muscle spasm or guarding. Muscle strength was 4/5 throughout except 3/5 in the left ankle plantar flexion and dorsiflexion. There was no muscle atrophy. Reflexes were normal. Sensation was decreased in the left lower leg and angle and the right foot and toes and was absent in the left foot and toes. Straight leg raising was negative. She exhibited mild intermittent pain, paresthesia, and numbness in the left lower extremity and moderate paresthesia and numbness in the right lower extremity. There was no ankylosis. There were no other neurologic abnormalities. There was no IVDS. She was diagnosed with sacroiliitis with lumbar radiculopathy, mild in the right sciatic nerve and moderate in the left sciatic nerve. The Veteran underwent another VA examination in October 2018. She reported that it hurts when she stands for 30 minutes and that she cannot bend without pain at night. She stated that her legs go weak and that she has spasms that keep her from getting out of bed. Flare-ups were described as hurting to bend or having to take breaks from standing. She stated that she cannot move or get out of bed sometimes due to pain. All ranges of motion were with normal limits. There was evidence of mild tenderness in the upper and lower back and of pain with weight bearing. Repetitive testing did not lead to additional loss of function or range. The examiner estimated no additional functional limitation during flare-ups or after repeated use over time. There was no guarding or muscle spasm. Muscle strength was full without atrophy. Reflex and sensory examination was normal. Straight leg raising was positive bilaterally. She reported mild intermittent pain, paresthesia, and numbness in both lower extremities. There were no other signs or symptoms of radiculopathy or other neurologic abnormalities. There was no ankylosis. IVDS did not cause any incapacitating episodes. She reported constant use of a brace. There was objective evidence of pain on passive range of motion testing of the back. There was objective evidence of pain on non-weight bearing testing of the back. The examiner diagnosed lumbosacral strain and IVDS with mild radiculopathy affecting the bilateral sciatic nerves. The examiner found functional impairment, specifically partial impairment of physical activities of employment such as heavy lifting, pushing, pulling, and carrying. As an initial matter, the Board acknowledges that the October 2018 VA examination is the only examination that is compliant with the requirements set forth by Correia V. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). However, since the February 2014 and February 2017 VA examination reports show ROM findings more favorable to the Veteran than the October 2018 VA examination report, the results most favorable to the Veteran will be used for the entire time period on appeal as to not prejudice the Veteran. The Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran's lumbosacral spine disability. Higher ratings are available for ankylosis, incapacitating episodes of at least 4 weeks over a 12-month period, forward flexion limited to 30 degrees or less, or the functional equivalent thereof. The evidence weighs against such manifestations. There is no evidence in the record of ankylosis. Records indicate an unspecified period of prescribed bed rest in September 2014 and October 2014 and 20 days of bed rest prescribed in April 2015. There is no indication of any other incapacitating episodes during the entirety of the appeal period, and February 2017 and October 2018 VA examinations found no incapacitating episodes in the prior 12-month periods. The evidence thus weighs against a finding of incapacitating episodes of at least 4 weeks during the year. Her forward flexion has never been measured as limited to less than 50 degrees, and the October 2018 VA examiner found that flare-ups and repeated use over time did not cause further loss of function or range. For these reasons, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran's lumbosacral spine disability. The Board further finds that evaluations in excess of 20 percent are not warranted for the Veteran's radiculopathy of the bilateral lower extremities. Higher ratings are available for the functional equivalent of complete paralysis of the sciatic nerves or for incomplete paralysis that is moderately severe or severe. The evidence weighs against symptoms of such severity. Indeed, moderate radiculopathy was diagnosed only in the left lower extremity by the February 2017 VA examiner. The examiner diagnosed mild radiculopathy in the right lower extremity, and the October 2018 VA examiner diagnosed mild radiculopathy in both lower extremities. The earlier examination found a mix of mild and moderate symptoms, and the later examination found only mild symptoms. There is no evidence in the record of severe or moderately severe symptoms, nor are symptoms shown beyond those that are wholly sensory. For these reasons, the Board finds that evaluations in excess of 20 percent are not warranted. 7. Entitlement to an effective date earlier than February 20, 2017 for an award of service connection for radiculopathy of the right lower extremity 8. Entitlement to an effective date earlier than February 20, 2017 for an award of service connection for radiculopathy of the left lower extremity The Veteran seeks earlier effective dates for her awards of service connection for radiculopathy of the bilateral lower extremities. Generally, the effective date of an award of a service connection claim is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Board finds that the Veteran's entitlement to service connection for radiculopathy of the right lower extremity did not arise prior to February 20, 2017. She was first diagnosed with radiculopathy at her VA examination on that date. The February 2014 VA examiner explicitly found no signs or symptoms of radiculopathy, and there is no evidence of right extremity radiculopathy prior to February 20, 2017. An earlier effective date is therefore denied. The Board finds that the Veteran's entitlement to service connection for radiculopathy of the left lower extremity arose on August 27, 2014. On that date, the Veteran presented to a VA emergency room reporting back pain radiating to her left leg. VA thus had evidence of symptoms of the disability, and her pending claim for an increased rating for her lumbar spine constituted a pending claim for any associated radiculopathy. While radiculopathy was not formally diagnosed until her next VA examination in February 2017, the evidence of the symptomatology is sufficient to establish the presence of a disability. There is no evidence of radiculopathy prior to August 27, 2014, and the February 2014 VA examination explicitly found no signs or symptoms of radiculopathy. An effective date of August 27, 2014 is therefore warranted. 9. Entitlement to a TDIU The Veteran seeks a TDIU. She contends that her service-connected disabilities, when considered in combination, render her unemployable. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service ("Director") for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The fact that a veteran is in receipt of a combined schedular rating of 100 percent does not preclude the availability of a TDIU. Although no additional disability compensation may be paid when a total schedular rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC, and thus must be considered by the Board. Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In addition to the ratings discussed above, the Veteran is in receipt of two 30 percent ratings for hallux valgus to include plantar fasciitis of each foot; nine additional 10 percent ratings for tinnitus, allergic rhinitis, gastroesophageal reflux disease (GERD), chronic knee strain with patellofemoral syndrome in each knee, and carpal tunnel syndrome in each wrist; and two noncompensable ratings for bilateral pinguecula and recurrent middle ear infections. Her combined schedular rating is 90 percent prior to February 20, 2017, and 100 percent thereafter. She thus meets the threshold for a schedular TDIU under 38 C.F.R. § 4.16(a). For the period from February 20, 2017, a TDIU is only available if it based on a single disability rating. See Bradley, 22 Vet. App. at 293-94. A December 2010 VA examination report indicates that the Veteran was working on her Bachelors in Health Administration and Information Systems and that she was in her third year of college. Social Security Administration records reflect that the Veteran applied for disability benefits in June 2011 based on a primary diagnosis of other and unspecified arthropathies and a secondary diagnosis of discogenic and degenerative disorders of the back. She was denied in October 2011 and again in September 2012. In her March 2013 application for a TDIU, the Veteran reported that she became too disabled to work due to all of her service-connected disabilities in 2010, prior to her October 2011 separation from service. She did not report any employment since separation and did not say what level of education she had obtained. In a March 2013 letter, the Veteran's private treating nurse practitioner stated that she had been found disabled by the military and has been unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. No further explanation or information was given. The February 2014 VA examiner noted functional impact from her sacroiliitis causing an inability to sit or stand for long periods with a need to move around, stretch, and take breaks in a work setting. Specifically, she could sit at a desk and do light office work, paperwork, or phone answering. The Veteran reported that she had been unsuccessful in finding a job since leaving the military in 2011 and had not worked since then. He also noted that the Veteran could not stand or walk for prolonged periods of time because she experienced cramping in the arches of both feet. She could sit at a desk and do light office work. In a February 2014 letter, another of the Veteran's private treating physicians stated that she had been found unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. No further explanation or information was given. In an August 2014 letter, the same private treating physician stated that the Veteran was unable to sit or stand for prolonged periods of time due to her mild scoliosis and sacroiliac dysfunction. In an October 2014 statement, the Veteran referred to the letters discussed in conjunction with her sacroiliitis above. She stated that she had now been out of work for about a month, and while working had to take days off due to flare-ups. In her October 2014 notice of disagreement, the Veteran reported that she took a part-time position at a bank working 24 hours per week. After 90 days she had been to the emergency room several times and placed on bed rest. She stated that she had not been back to work since. In a July 2017 letter, the Veteran's private physician stated that due to her back pain she is unable to sit or stand for 3 out of 8 hours at a time. She required frequent alternation between sitting and standing with limitations in bending and carrying large objects. The physician further stated that her TBI causes an inability to concentrate and focus, requiring frequent breaks for rest. The physician found that she was limited to 20 hours of work per week and was unable to secure substantially gainful employment due to her service-connected disabilities. In an August 2018 application for a TDIU, the Veteran reported that she became too disabled to work in October 2013 due to all of her service-connected disabilities. She stated that from November 2016 to July 2018 she worked 20 hours per week for a bank, earning as much as $1500 per month and losing 15 months to illness. Attached documentation indicated that she was still on medical leave from the bank and receiving short-term disability. She stated that she was in the process of being discharged. In a November 2018 statement, the Veteran reported that her chronic migraines, sacroiliitis, carpal tunnel syndrome, and TBI residuals make it extremely hard to obtain and sustain work. Her back disability prevents her from sitting for more than two hours. Her migraines prevent her from concentrating, walking in sunlight, and performing daily tasks. Her carpal tunnel syndrome prevents her from typing, causing her arms to go numb at night and her hands to cramp up when typing, writing, or holding objects. A December 2018 letter indicates that her short-term disability benefits had been continued through January 2019. A January 2019 letter from her employer indicated that she had not returned to work as expected in December 2018 and had not answered her phone for four attempted contacts in December 2018. The letter indicated that she had been on medical leave since July 2018 and asked if accommodations could be made for her to return in January 2019. If she did not reply, her position was not guaranteed. In compliance with the Board's February 2020 remand, VA issued a March 2020 letter to the Veteran and her representative requesting that she update her employment status and inform VA whether she returned to work in January 2019 as requested. She failed to reply to the letter. The Board finds that the evidence weighs against a finding that the Veteran's service-connected disabilities have rendered her unemployable or unable to secure and follow a substantially gainful occupation. While her disabilities have clearly interfered with her work, it does not establish that it interfered to the point that she was rendered unemployable. It appears that the Veteran was employed at various points during the appeal period. She has consistently either returned from her medical leaves of absence or found new employment. The most recent evidence indicates that she was scheduled to return to work in January 2019. She was asked for information as to whether she returned or became unemployed, but she declined to provide VA with such information. As such, there is no evidence that her employment ceased. Furthermore, even if she did leave her job in January 2019, by that time she is in receipt of a combined rating of 100 percent and thus is only eligible for a Bradley TDIU based on a single service-connected disability. There is no evidence in the record indicating that a single disability by itself rendered her unable to perform her job. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's service-connected disabilities have rendered her unemployable or unable to secure and follow a substantially gainful occupation, and a TDIU is therefore denied. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.