Citation Nr: 21067352 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-19 315 DATE: November 4, 2021 ORDER Beginning April 13, 2016, entitlement to a disability rating of 40 percent, but no higher, for chronic low back strain with degenerative disc/joint disease of the lumbar spine (hereinafter referred to as "lumbar spine disability") is granted. Beginning April 13, 2016, entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. REMANDED For the appellate period prior to April 13, 2016, entitlement to a disability rating in excess of 20 percent for a lumbar spine disability is remanded. For the appellate period prior to April 13, 2016, entitlement to a TDIU is remanded. FINDINGS OF FACT 1. Beginning April 13, 2016, the evidence is in equipoise as to whether the Veteran's lumbar spine disability has been manifested by forward flexion to 30 degrees or less, with consideration of pain, but not by unfavorable ankylosis (or functional ankylosis) of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the past 12 months. 2. Beginning April 13, 2016, the evidence is in equipoise as to whether the Veteran has been rendered unable to maintain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Beginning April 13, 2016, the criteria for a disability rating of 40 percent, but no higher, for a lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5242-5237. 2. Beginning April 13, 2016, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 1995 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript is of record and has been reviewed. In September 2021, the Veteran was notified that the VLJ before whom he testified was no longer employed by the Board and he was provided an opportunity to request another hearing. In October 2021 Correspondence, the Veteran stated that he did not wish to appear at another Board hearing, and he requested that the case be considered on the evidence of record. Accordingly, the Board will proceed with adjudication. In September 2020, the Board remanded the issues of entitlement to a disability rating in excess of 20 percent for chronic low back strain and entitlement to service connection for degenerative disc disease of the lumbar spine. In an April 2021 rating decision, the RO granted service connection for radiculopathy of the left lower extremity as secondary to the Veteran's service-connected chronic low back strain and assigned a disability rating of 10 percent, effective March 22, 2021. In a June 2021 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine and determined that it would be included in the existing 20 percent disability rating for the Veteran's chronic low back strain. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. A 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). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 38 C.F.R. § 4.45 requires consideration 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."). In evaluating disabilities of the musculoskeletal system, painful motion is an important factor of disability. See 38 C.F.R. § 4.59. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. Id. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the relevant rating criteria were as follows. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made 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. Under the General Rating Formula, a 20 percent rating is warranted where there is 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 is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See id. A 40 percent rating is available when there is forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent rating is available for unfavorable ankylosis of the entire spine. See id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion (ROM) refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. The normal ROMs for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2); see also Plate V. 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. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (5). IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the Formula for Rating IVDS, a 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). Under DC 5003, degenerative arthritis established by radiographic imaging/X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint affected. A rating in excess of 10 percent is not available absent X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. As of February 7, 2021, the changes to the DCs are as follows. Unless noted below, no changes were made to the relevant rating criteria. DC 5242 was changed to clarify that it applied to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (also, see either 5003 or 5010). DC 5243, applicable to IVDS, was changed to clarify that it is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 should be assigned for all other disc diagnoses. The rating criteria under DC 5003 did not change on February 7, 2021; however, the DC was changed to clarify that it only applied to degenerative arthritis, other than post-traumatic. Post-traumatic arthritis is separately rated under DC 5010. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5003, 5010). Here, the Veteran is currently in receipt of a 20 percent disability rating for his lumbar spine disability for the entire period on appeal. He asserts that a higher disability rating is warranted. As an initial matter, the Board acknowledges that until the June 2021 rating decision, the Veteran was only service connected for chronic low back strain. Prior to that time, there was some conflict in the record as to whether the Veteran's symptoms and level of impairment during the appeal period were attributable to his service-connected chronic low back strain, or rather to his other non-service-connected lumbar spine disabilities, including degenerative disc disease of the lumbar spine. See VA examination reports dated June 2015 and April 2016; VA medical opinions dated April 2016, August 2016, and April 2021. However, in the June 2021 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine and determined that it would be included in the existing 20 percent disability rating for the Veteran's chronic low back strain, effective April 19, 2015. Therefore, any symptoms noted during the period on appeal to be attributable to the Veteran's degenerative disc disease will be considered in the disability rating assigned. Additionally, in a June 2021 VA medical opinion, the VA examiner was asked to explain which thoracolumbar signs and symptoms were attributable to the veteran's non-service-connected thoracolumbar conditions. The June 2021 VA examiner explained that the Veteran's diagnosed reflex sympathetic dystrophy (RSD) shares no signs or symptoms with his thoracolumbar degenerative disc disease as it affects the legs, and that the Veteran's diagnosed autoimmune spondylitis also manifests with lumbar spine pain and limitation of range of motion. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Since the record remains unclear as to which lumbar spine symptoms are attributable to the Veteran's service-connected lumbar spine disability, and which are attributable to his non-service-connected autoimmune spondylitis, the Board is precluded from differentiating the symptoms. Therefore, it will apply the reasonable doubt doctrine and attribute all his lumbar spine symptoms to his service-connected lumbar spine disability. Turning to the evidence, on April 13, 2016, the Veteran was provided a VA examination to determine the severity of his lumbar spine disability. On initial range of motion (ROM) testing, the Veteran had forward flexion of the thoracolumbar spine to 30 degrees. The VA examiner noted that the ROM itself contributed to a functional loss, explaining that the Veteran had great difficulty with pulling on shoes and socks and that he wore slip-on shoes so that he could get his shoes on and off with little forward bending. Pain was noted on examination during ROM in all planes and caused functional loss, and there was evidence of pain with weightbearing. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional loss of function or ROM after the repetitions. As previously determined by the Board in its September 2020 decision, the April 2016 VA examination did not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). Even so, the results of initial ROM testing and the lay information provided by the Veteran during the examination regarding his symptoms and functional impairments is highly probative as to the severity of his lumbar spine disability. In his April 2016 VA Form 9, the Veteran reported that he had great difficulty doing any tasks that require forward bending. In April 2021, the Veteran was provided an additional examination to assess the current severity of his lumbar spine disability. On initial ROM testing, the Veteran had forward flexion of the thoracolumbar spine to 40 degrees. The VA examiner noted that the ROM itself contributed to a functional loss, explaining that the Veteran had limitations to bending and turning. Pain was noted on examination during ROM in all planes and with weightbearing and active motion and was not noted to cause functional loss. Passive ROM was not performed because it was medically contraindicated due to risk of increased injury. The Veteran was not able to perform repetitive use testing with at least three repetitions due to pain. The VA examiner noted that the Veteran was not examined immediately after repeated use over time or during a flareup, and that the procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability after repeated use over time or during a flareup. On review of the evidence, both lay and medical, the Board finds that, since April 13, 2016, the manifestations of the Veteran's lumbar spine disability have more nearly approximated the criteria for a disability rating of 40 percent under the General Rating Formula. Specifically, the evidence is in equipoise as to whether the Veteran had forward flexion of the thoracolumbar spine to 30 degrees or less since April 13, 2016. During the April 2016 VA examination, initial ROM testing revealed forward flexion of the thoracolumbar spine to 30 degrees. While the Veteran had forward flexion of the thoracolumbar spine to 40 degrees on initial ROM testing at the April 2021 VA examination, the Board finds it highly significant that the Veteran was not able to perform repetitive use testing due to pain and that the ROM itself contributed to a functional loss, resulting in limitations in bending and turning. Thus, with consideration of the additional functional limitations caused by pain, and after resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to a disability rating of 40 percent for his lumbar spine disability beginning April 13, 2016. However, a higher rating is not warranted under either the General Rating Formula or the Formula for Rating IVDS. The evidence does not demonstrate unfavorable ankylosis (or even functional ankylosis) of the entire thoracolumbar spine, which is required for a 50 percent rating under the General Rating Formula. See VA examination reports dated April 2016 and April 2021. Nor does the evidence show that the Veteran has had incapacitating episodes of IVDS having a total duration of at least 6 weeks during the past 12 months, such that he would be entitled to a 60 percent rating under the Formula for Rating IVDS. See id. The Board notes that the Veteran is already service connected for radiculopathy of the left lower extremity as secondary to his lumbar spine disability, rated as 10 percent disabling, effective March 22, 2021. The Veteran has not expressed disagreement with the rating or effective date assigned for this disability. At any rate, there is no evidence showing that the radiculopathy of the left lower extremity results in more than mild neurological impairment. Furthermore, the preponderance of the evidence is against the assignment of a separate rating for any radiculopathy of the right lower extremity. Straight leg raising tests were negative, bilaterally, on VA examination in April 2016 and April 2021. Additionally, the April 2016 VA examiner determined the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy, and the April 2021 VA examiner did not note any radicular symptoms in the Veteran's right lower extremity. The Board acknowledges that in a June 1996 service treatment record, the Veteran endorsed numbness going down the back of his right leg. However, this evidence far predates the period on appeal, and there are no further lay reports of radicular symptoms in the right lower extremity. While later treatment records indicate that the Veteran had "low back pain with radiculopathy" or "intervertebral disc disorder with radiculopathy," there is no mention of radiculopathy specifically affecting the right lower extremity. See December 2016 non-VA treatment note; June 2018 VA treatment record addendum; July 2018 VA pharmacy consultation record. Indeed, some providers have challenged the diagnosis of radiculopathy, noting that magnetic resonance imaging (MRI) and electromyography (EMG) did not show lumbar radiculopathy, but rather revealed sensorimotor polyneuropathy of moderate severity, fairly symmetric, with primarily axonal features consistent with a diabetic polyneuropathy. See June 2018 VA administrative note; November 2019 VA primary care outpatient note. For these reasons, the Board finds that a separate rating for radiculopathy of the right lower extremity is not warranted. As discussed in the Remand section below, the Board finds that entitlement to a disability rating in excess of 20 percent for the Veteran's lumbar spine disability prior to April 13, 2016 must be remanded for additional development. 2. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "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(a)(1). Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). Here, the Veteran is in receipt of the following ratings for his service-connected disabilities during the period on appeal: depression with insomnia (50 percent from January 24, 2007); lumbar spine disability (20 percent from April 19, 2015 and 40 percent from April 13, 2016); radiculopathy of the left lower extremity (10 percent from March 22, 2021). Beginning April 13, 2016, the Veteran has a combined disability rating of 70 percent, with at least one disability rated at 40 percent or more. Accordingly, the Veteran meets the schedular threshold for a TDIU beginning April 13, 2016. The remaining question is whether the Veteran's service-connected disabilities have precluded the Veteran from securing and following a substantially gainful occupation since April 13, 2016. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). After careful consideration of the record and resolution of all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is unemployable by reason of his service-connected disabilities beginning April 13, 2016. Specifically, the Board finds that the Veteran would not have been able to maintain any type of employment that was relevant to his educational background and work experience. In this regard, the Board notes that in Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). As to the economic component of a substantially gainful occupation, the Board finds that the Veteran has been unemployed since 2005. See VA examination reports dated June 2015 and August 2016; October 2015 VA addendum treatment record; June 2020 Board hearing transcript. Thus, the Board finds that the Veteran did not work in a gainful capacity at any point during the appellate period. As to the non-economic component of a substantially gainful occupation, the Veteran worked as a furniture mover and mechanic until 2005, and he has a high school education and aircraft mechanic training. See April 2007 VA back examination report; November 2007 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran's physical ability to perform the type of activities required by his former occupations is severely impacted by his service-connected lumbar spine disability, which interferes with his ability to bend over and lift objects and to sit or stand for prolonged periods of time. See VA back examination reports dated April 2016 and April 2021; June 2020 Board hearing testimony. In an October 2015 VA addendum treatment record, the Veteran reported that he has not been able to work since 2005 due to physical pain and health issues. The Board acknowledges that the April 2016 VA examiner opined that the Veteran's lumbar spine disability did not impact his ability to work. However, the Board finds it highly significant that the April 2021 VA examiner determined that the Veteran's lumbar spine disability impacted his ability to perform any type of occupational task, explaining, "veteran would require use of his motorized scooter but could participate in sedentary work, physical labor would be not possible." The Board disagrees that the Veteran would be able to participate in sedentary work, especially with consideration of his educational background and work experience. Additionally, the Board observes that the Veteran's service-connected depression with insomnia has also been found to interfere with his ability to work, as well as his social functioning. See April 2007 VA mental disorders examination report. Based on the foregoing, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that a TDIU predicated on unemployability stemming from the Veteran's service-connected disabilities is warranted beginning April 13, 2016. As discussed in the Remand section below, the Board finds that entitlement to a TDIU prior to April 13, 2016 is inextricably intertwined with the remanded issue of entitlement to a disability rating in excess of 20 percent for the Veteran's lumbar spine disability prior to April 13, 2016. REASONS FOR REMAND 1. For the appellate period prior to April 13, 2016, entitlement to a disability rating in excess of 20 percent for a lumbar spine disability is remanded. The Veteran asserts he is entitled to a disability rating in excess of 20 percent for his lumbar spine disability for the appellate period prior to April 13, 2016. The Board finds that additional development is necessary prior to appellate review of this claim. As previously determined by the Board in its September 2020 decision, the June 2015 VA examination is inadequate under Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also finds the June 2015 VA examination to be inadequate under Correia v. McDonald, 28 Vet. App. 158, 166 (2016), as the VA examiner did not conduct joint testing for pain on active and passive motion, and in weight-bearing and non-weight-bearing. The Board requires further information as to the Veteran's lumbar spine symptoms and level of impairment during the appellate period prior to April 13, 2016. Therefore, a retrospective opinion should be obtained as to the severity of the Veteran's lumbar spine disability at the time of the June 2015 VA examination. 2. For the appellate period prior to April 13, 2016, entitlement to a TDIU is remanded. The Board finds that the issue of entitlement to a TDIU for the appellate period prior to April 13, 2016 must be remanded as it is inextricably intertwined with the issue of entitlement to a disability rating in excess of 20 percent for the Veteran's lumbar spine disability prior to April 13, 2016. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the matters are REMANDED for the following action: 1. Obtain a retrospective VA medical opinion as to the severity of the Veteran's lumbar spine disability at the time of the June 2015 VA examination. Specifically, the examiner should attempt to render a retrospective opinion that identifies the ranges of motion of the Veteran's lumbar spine in active motion, passive motion, weightbearing, and non-weightbearing (including accounting for functional impairment due to pain) in June 2015. The VA examiner should also provide an opinion as to any additional degrees of limitation of motion during flare-ups and after repetitive use over time due to pain, weakness, excess fatigability, and/or incoordination. If it is not possible to provide such opinions or estimations without resorting to mere speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. (Continued on the next page) 2. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.