Citation Nr: 21068869 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 16-02 172 DATE: November 15, 2021 ORDER Entitlement to an initial 20 percent rating effective February 1, 2012, for right knee osteoarthritis is granted. Entitlement to an initial rating greater than 20 percent for right knee instability is denied. Entitlement to an initial 20 percent rating prior to June 27, 2016, and between August 1, 2016 and August 17, 2020, for a lumbosacral spine disability is granted. Entitlement to an initial 20 percent rating for radiculopathy of the right lower extremity is granted. Entitlement to an initial compensable rating for a right knee scar is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from April 11, 2011. FINDINGS OF FACT 1. The record evidence shows that, prior to February 1, 2012, the Veteran's service-connected right knee osteoarthritis is manifested by, at worst, complaints of right knee pain. 2. The record evidence shows that effective February 1, 2012, the Veteran's service-connected right knee osteoarthritis is manifested by, at worst, extension limited to 15 degrees. 3. The record evidence shows that the Veteran's service-connected right knee instability is manifested by, at worst, moderate lateral instability throughout the appeal period. 4. The record evidence shows, prior to June 27, 2016, and between August 1, 2016, and August 17, 2020, the Veteran's service-connected lumbosacral spine disability is manifested by, at worst, forward flexion to 60 degrees with pain. 5. The record evidence shows that, effective August 17, 2020, the Veteran's service-connected lumbosacral spine disability is manifested by, at worst, forward flexion to 30 degrees due to pain, fatigue, weakness, and lack of endurance with repetitive use over a period of time. 6. The record evidence shows that the Veteran's service-connected radiculopathy of the right lower extremity is manifested by, at worst, moderate incomplete paralysis of the sciatic nerve throughout the appeal period. 7. The record evidence shows that the Veteran's service-connected right knee scar does not result in any compensable disability. 8. From April 11, 2011, the Veteran has been unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating effective February 1, 2012, for right knee osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5261 (2020). 2. The criteria for an initial rating greater than 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2020). 3. The criteria for an initial 20 percent rating prior to June 27, 2016, and between August 1, 2016 and August 17, 2020, for a lumbosacral spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5241 (2020). 4. The criteria for an initial 20 percent rating for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520 (2020). 5. The criteria for an initial compensable rating for a right knee scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, DC 7805 (2020). 6. The criteria for entitlement to a TDIU from April 11, 2011 are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1978 to September 1984 and from December 1984 to September 1998 in the U.S. Marine Corps. He also had additional unverified U.S. Marine Corps Reserve service. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted the Veteran's claims of service connection for right knee instability, assigning a 20 percent rating effective April 11, 2011, right knee osteoarthritis, assigning a 20 percent rating effective April 11, 2011, and for a lumbosacral spine disability, assigning a 10 percent rating effective April 11, 2011. It also is on appeal from a December 2012 rating decision in which the RO granted a claim of service connection for radiculopathy of the right lower extremity, assigning a 10 percent rating effective April 11, 2011. It further is on appeal from a January 2016 rating decision in which the RO denied the Veteran's TDIU claim. The Veteran appointed his current representative to represent him before VA by filing a completed VA Form 21-22a at the RO in April 2013. In an August 2020 rating decision, the RO assigned, in pertinent part, a higher initial 30 percent rating effective August 17, 2020, for the service-connected right knee osteoarthritis. The RO next assigned a temporary total (100 percent) rating effective June 27, 2016, a higher initial 10 percent rating effective August 1, 2016, and a higher initial 40 percent rating effective August 17, 2020, for the service-connected lumbosacral spine disability. In October 2018 and in July 2021, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ issue a supplemental statement of the case (SSOC) on the currently appealed claims in the July 2021 remand. An SSOC was promulgated on these claims in August 2021. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In an August 2021 rating decision, the RO (or AOJ) assigned, in pertinent part, a higher initial 20 percent rating effective August 17, 2020, for the Veteran's service-connected radiculopathy of the right lower extremity. The RO also granted service connection for radiculopathy of the left lower extremity. There is no subsequent correspondence from the Veteran expressing disagreement with the rating or effective date assigned for radiculopathy of the left lower extremity. Accordingly, the issue of service connection for radiculopathy of the left lower extremity is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. The Board finally acknowledges that the rating criteria for evaluating musculoskeletal disabilities were revised effective February 7, 2021. As relevant to the claims adjudicated in this decision, the revised DC 5257 provides a 20 percent rating for recurrent subluxation or instability due to a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes a brace and/or assistive device for ambulation or an unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device or bracing for ambulation. A maximum 30 percent rating is assigned under the revised DC 5257 for recurrent subluxation or instability with unrepaired or failed repair or complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. See 38 C.F.R. § 4.71a, DC 5257 (effective February 7, 2021). No substantive changes were made to the rating criteria for spine disabilities. Increased Rating 1. Entitlement to an initial 20 percent rating effective February 1, 2012, for right knee osteoarthritis The Board finds that the evidence supports assigning an initial 20 percent rating effective February 1, 2012, for right knee osteoarthritis. The Veteran essentially contends that his service-connected right knee osteoarthritis is more disabling than currently (and initially) evaluated. The Board agrees, finding that the symptomatology attributable to this disability worsened on VA examination on February 1, 2012, and supports the assignment of a higher initial 20 percent rating effective on that date under DC 5261. See 38 C.F.R. § 4.71a, DC 5261 (2020). Prior to this date, the record evidence shows that the service-connected right knee osteoarthritis is manifested by, at worst, complaints of right knee pain. For example, the available service treatment records show that, on outpatient treatment in January 1995, the Veteran's complaints included right knee pain due to a football hyperextension injury. He denied any acute swelling, locking, or giving way but experienced persistent retropatellar pain. Objective examination showed swelling but no effusion or joint line tenderness. The diagnosis was probable patellofemoral pain syndrome of the right knee. He was sent to physical therapy for quadriceps strengthening. In February 1995, he complained that he was hit on the right knee with instant pain and swelling. He also complained of right knee pain since this injury with straightening and multiple episodes of giving way. He denied locking or swelling. Objective examination showed medial joint line tenderness, laxity, and pivot shift. The diagnoses were medial meniscus tear and anterior cruciate ligament (ACL) tear. He was advised to schedule surgery for medial meniscus tear repair. He was placed on limited duty in January 1996 with no running, jumping, squatting, or heavy lifting. In August 1997, he complained of right greater than left knee pain. Objective examination showed right knee medial joint line tenderness. The diagnoses included right knee chondromalacia grade IV at the lateral femoral condyle. At his final separation physical examination in April 1998 prior to his separation from service in September 1998, he reported an in-service history of knee problems, an inability to kneel, and being advised to have surgery on his right knee. The in-service clinician noted a history of chondromalacia and degenerative joint disease of the right knee and status-post scope of the right knee. Both of these diagnoses were not considered disabling by the in-service clinician. The post-service evidence shows that, on private outpatient treatment in August 2011, the Veteran's complaints included right greater than left knee pain which worsened after prolonged sitting. Contrary to the Veteran's lay assertions, the record evidence shows that, prior to February 1, 2012, his service-connected right knee osteoarthritis is manifested by, at worst, complaints of right knee pain. These complaints are compensated adequately by the initial 10 percent rating assigned prior to this date under DC 5261. Id. The Board recognizes that the Veteran injured his right knee and was treated for multiple complaints of right knee pain while on active service. His service treatment records suggest that he was advised to undergo right knee surgery but did not do so. This finding is consistent with the Veteran's report at his final separation physical examination in April 1998, prior to his separation from service in November 1998, that he had been advised to undergo right knee surgery. This finding also is consistent with the April 1998 in-service clinician's notations of a medical history of chondromalacia and degenerative joint disease of the right knee and status-post scope of the right knee. The Veteran's limited post-service medical records dated prior to February 1, 2012, also indicate that his service-connected right knee osteoarthritis is manifested by, at worst, complaints of right knee pain. There is no indication that, prior to February 1, 2012, the service-connected right knee osteoarthritis is manifested by extension limited to 15 degrees or more as is required for an initial rating greater than 10 percent under DC 5261. Id. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 10 percent prior to February 1, 2012, for his service-connected right knee osteoarthritis. Thus, the Board finds that the criteria for an initial rating greater than 10 percent prior to February 1, 2012, for right knee osteoarthritis have not been met. In contrast, the record evidence supports assigning a higher initial 20 percent rating effective February 1, 2012, for the service-connected right knee osteoarthritis. VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) conducted on February 1, 2012, showed that his complaints included extremely painful walking, a "very stiff" right knee, "and he can't knee or squat." The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran reported injuring his right knee when he fell playing football and hyperextended it. He experienced daily flare-ups with stiffness and swelling on the lower portion of the leg. Range of motion testing of the right knee showed flexion to 110 degrees with objective evidence of painful motion beginning at 100 degrees and extension to 10 degrees with objective evidence of painful motion beginning at 5 degrees. He was unable to do more than 3 repetitions of range of motion testing "due to knee pain, back pain, and fatigue." Repetitive range of motion testing of the right knee showed flexion to 115 degrees and extension to 15 degrees. Physical examination of the right knee showed less movement than normal, weakened movement, pain on movement, tenderness to palpation, 3/5 muscle testing on flexion, 2/5 muscle testing on extension, 2+ instability, and residual painful motion and weakness. He constantly used a cane for ambulation which "helps with balance" and walked with a limp on the right leg. X-rays showed arthritis. The diagnoses included right knee osteoarthritis. Consistent with the Veteran's lay assertions, the record evidence supports assigning a higher initial 20 percent rating effective February 1, 2012, for his service-connected right knee osteoarthritis. VA examination on February 1, 2012, shows that this disability is manifested by, at worst, right knee extension limited to 15 degrees. This physical examination finding supports assigning a higher initial 20 percent rating effective February 1, 2012, for the service-connected right knee osteoarthritis under DC 5261. Id. There is no indication that, between February 1, 2012, and August 17, 2020 (when a higher initial 30 percent rating was assigned), this disability is manifested by right knee extension limited to more than 15 degrees as is required for an initial rating greater than 20 percent under DC 5261. Id. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an initial 20 percent rating effective February 1, 2012, for right knee osteoarthritis have been met. The record evidence also does not support assigning an initial rating greater than 30 percent effective August 17, 2020, for the service-connected right knee osteoarthritis. The Board acknowledges here that a higher initial 30 percent rating was assigned effective August 17, 2020, for the service-connected right knee osteoarthritis under DC 5261. Id. VA knee and lower leg conditions DBQ on August 17, 2020, showed that the Veteran's complaints included right knee stiffness and decreased range of motion, mobility, and endurance. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran denied experiencing flare-ups of right knee pain. He experienced functional impairment or functional loss due to difficulties standing, walking, running, and driving for a long period of time. Range of motion testing of the right knee showed flexion from 15 to 90 degrees and extension from 90 to 15 degrees with pain. There was no additional limitation of motion on repetitive testing. Physical examination of the right knee showed objective evidence of crepitus and 5/5 muscle strength. With repeated use over time, right knee flexion was estimated from 20 to 80 degrees and extension was estimated from 80 to 20 degrees. There was objective evidence of pain on passive range of motion testing and in non-weight bearing. The diagnoses included right knee patellofemoral pain syndrome. Consistent with the Veteran's lay assertions, the record evidence shows that the symptomatology attributable to his service-connected right knee osteoarthritis worsened effective August 17, 2020. VA examination conducted on that date found right knee extension limited to 20 degrees with repeated use over time. This physical examination finding supported the assignment of a higher initial 30 percent rating effective August 17, 2020, for the service-connected right knee osteoarthritis under DC 5261. Id. There is no indication that, effective August 17, 2020, the Veteran's right knee extension was limited to more than 20 degrees such that an initial rating greater than 30 percent is warranted as of that date. Id. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 30 percent effective August 17, 2020, for his service-connected right knee osteoarthritis. In summary, the Board finds that the criteria for an initial rating greater than 30 percent effective August 17, 2020, for right knee osteoarthritis have not been met. 2. Entitlement to an initial rating greater than 20 percent for right knee instability The Board next finds that the preponderance of the evidence is against assigning an initial rating greater than 20 percent for right knee instability. Contrary to the Veteran's lay assertions, the record evidence shows that this disability is manifested by, at worst, moderate lateral instability (i.e., a 20 percent rating under DC 5257) throughout the appeal period. See 38 C.F.R. § 4.71a, DC 5257 (2020). The Board again recognizes that the Veteran injured his right knee while on active service, was treated for multiple in-service complaints of right knee pain, and was advised to undergo right knee surgery during service but did not do so. The post-service evidence also does not support assigning an initial rating greater than 20 percent for the service-connected right knee instability under either the former or revised rating criteria at any time during the appeal period. It shows instead that this disability is manifested by, at worst, moderate lateral instability throughout the appeal period. For example, VA knee and lower leg conditions DBQ in February 2012 showed 2+ anterior instability, 2+ posterior instability, and 2+ medial-lateral instability on physical examination of the right knee. These findings indicate the presence of moderate lateral instability of the right knee which supports the 20 percent rating currently and initially assigned for the service-connected right knee instability under the former DC 5257. Id. There is no indication that a medical provider prescribed a knee brace and/or assistive device for treatment of the service-connected right knee instability. Thus, a higher initial rating also is not warranted under the revised rating DC 5257. VA knee and lower leg conditions DBQ in August 2020 showed a history of slight lateral instability in the right knee with 1+ anterior instability, 1+ medial instability, and 1+ lateral instability noted on physical examination of the right knee. He constantly used a knee brace for his right knee instability. The diagnoses included right knee instability. Contrary to the Veteran's lay assertions, the record evidence shows that his service-connected right knee instability is manifested by, at worst, moderate lateral instability throughout the appeal period. VA examination in February 2012 documented the presence of 2+ instability (or moderate instability) on anterior, posterior, and medial-lateral joint stability testing in the right knee. These findings supported the assignment of the initial 20 percent rating for service-connected right knee osteoarthritis under DC 5257. Id. There is no indication that this disability is manifested by severe lateral instability as is required for a higher initial 30 percent rating under the former DC 5257. Id. Indeed, it appears that the Veteran's right knee joint stability improved from 2+ instability to 1+ instability (or mild instability) on anterior, posterior, and medial-lateral joint stability testing in the right knee at his most recent VA examination in August 2020. There again is no indication that a medical provider prescribed a brace and/or assistive device for treatment of the service-connected right knee instability at any time during the appeal period. Although the February 2012 VA knee and lower leg conditions DBQ examiner noted that the Veteran constantly used a cane for balance and walked with a limp, this examiner did not indicate that the cane was prescribed by a medical provider. Similarly, the August 2020 VA knee and lower leg conditions DBQ examiner noted that the Veteran constantly wore a knee brace. There is no indication, however, that this knee brace was prescribed by a medical provider. Thus, a higher initial rating is not warranted under the revised DC 5257. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 20 percent for his service-connected right knee instability. Thus, the Board finds that the criteria for an initial rating greater than 20 percent for right knee instability have not been met. 3. Entitlement to an initial 20 percent rating prior to June 27, 2016, and between August 1, 2016 and August 17, 2020, for a lumbosacral spine disability The Board next finds that the evidence supports assigning an initial 20 percent rating prior to June 27, 2016, and between August 1, 2016, and August 17, 2020, for a lumbosacral spine disability. The Veteran essentially contends that his service-connected lumbosacral spine disability is more disabling than currently and initially evaluated throughout the appeal period. The record evidence supports his assertions, at least prior to June 27, 2016, and between August 1, 2016, and August 17, 2020. It shows that this disability is manifested by, at worst, forward flexion to 60 degrees with pain prior to June 27, 2016, and between August 1, 2016, and August 17, 2020. This finding supports the assignment of a higher initial 20 percent rating during this time period for the service-connected lumbosacral spine disability under DC 5241. See 38 C.F.R. § 4.71a, DC 5241 (2020). (The Board notes parenthetically that, because the Veteran is in receipt of a temporary total disability rating between June 27, 2016, and August 1, 2016, for his service-connected lumbosacral spine disability, he is not eligible for a higher initial schedular rating during that time period.) The available service treatment records show that, on outpatient treatment in September 1986, the Veteran's complaints included a low back ache radiating to the right leg and knee joint. He denied any history of injury. Objective examination showed no kyphosis or scoliosis, equal knee and ankle jerks bilaterally, and tenderness to palpation in the right sacroiliac joint. The diagnosis was acute sacroiliac joint sprain. He was placed on light duty for 2 weeks. At his separation physical examination in April 1998 prior to his final separation from service in September 1998, he reported an in-service medical history of back problems. A history of chronic low back pain radiating to the posterior thighs was noted although the in-service clinician stated that this was not considered disabling. Clinical evaluation was within normal limits at his April 1998 separation physical examination. The post-service evidence also supports assigning a higher initial 20 percent rating prior to June 27, 2016, and between August 1, 2016, and August 17, 2020, for his service-connected lumbosacral spine disability. For example, on VA back (thoracolumbar spine) conditions DBQ in February 2012, the Veteran reported experiencing flare-ups of low back pain which he described as constant back pain, stiffness, and an inability to stand or walk "for extended periods." The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. Range of motion testing of the lumbosacral spine showed forward flexion to 70 degrees with objective evidence of painful motion beginning at 60 degrees. Repetitive range of motion testing again showed forward flexion to 70 degrees. Physical examination of the lumbosacral spine showed less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing, and/or weight-bearing, "mild thoracolumbar discomfort when palpated," guarding and/or muscle spasm not resulting in abnormal gait or spinal contour, 4/5 muscle strength, normal reflexes and sensation, positive straight leg raising on the right leg, and intervertebral disc syndrome without incapacitating episodes. He constantly used a cane "for balance when walking." X-rays showed arthritis. The diagnoses were degenerative disc disease and scoliosis. A "Lumbar Spine Impairment Questionnaire" dated in April 2013 and completed by a private clinician indicates that the Veteran reported that he initially experienced pain when testing forward flexion of the lumbar spine at 30 degrees or less. He was able to complete his activities of daily living. There also were positive clinical findings of tenderness, muscle spasm, and an abnormal gait. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Having reviewed the April 2013 "Lumbar Spine Impairment Questionnaire," the Board finds that this evidence is not probative on the issue of whether the Veteran is entitled to a higher initial rating for his service-connected lumbosacral spine disability. It is not clear whether the private clinician who completed this questionnaire actually examined the Veteran before completing this form. It also appears that this clinician concluded that the range of motion for the Veteran's lumbosacral spine was limited to 30 degrees or less on the basis of what he reported rather than on objective range of motion testing. This clinician further provided no "clinical data or other rationale" to support the information contained in this questionnaire. Thus, it is not probative on the issue of entitlement to a higher initial rating for the service-connected lumbosacral spine disability. On private outpatient treatment in February 2016, the Veteran's complaints included low back pain with radiation in to the bilateral lower extremities. He denied any weakness, numbness, or bowel or bladder problems. An magnetic resonance imaging (MRI) scan of the lumbosacral spine showed "a large inferiorly extruded central and left paracentral L2-3 [herniated nucleus pulposus (HNP)]." He reported that prior medial branch blocks and lumbar epidural steroid injections had failed to reduce his low back pain. Physical examination of the lumbosacral spine showed tenderness at L4-5, tenderness at the iliolumbar region, decreased motor strength in the hips, and positive straight leg raising on the left leg. The assessment included spinal stenosis of the lumbar region, arthropathy of the lumbar facet joint, degeneration of lumbar intervertebral disc, low back pain, neurogenic claudication, and prolapsed lumbar intervertebral disc. In November 2016, the Veteran's complaints included low back pain "which does not bother him [or prevent him] from performing his daily activities. He is still cutting wood, changing car engines, and changing floors. He still [is] very active. But he does all this stuff with pain in the back." A history of spinal fusion surgery in June 2016 was noted. Range of motion testing of the spine was normal. Physical examination of the spine showed normal palpation, 5/5 muscle strength, 1+ reflexes, intact sensation, and a normal gait. X-rays of the lumbosacral spine showed no change in appearance of status-post L1 bilateral iliac posterior fusion with intact hardware. "Overall he seems to be doing okay." In July 2017, the Veteran reported "feeling much better due to medication change." He rated his average pain as 3/10 on a pain scale with the worst pain 5/10. "He states he remains active including heavy labor such as a putting in an engine in a car and currently replacing the windows in his house." Following a change in medication, he is much more active and "his pain is much better controlled." Physical examination of the lumbosacral spine showed normal alignment, no ecchymosis, a well-healed mid-line surgical scar, normal motor strength, normal sensation, and negative straight leg raising bilaterally. The assessment included lumbar spondylosis, degeneration of lumbar intervertebral disc, lumbar post-laminectomy syndrome, and low back pain. In November 2017, the Veteran's complaints included low back pain which radiated in to the bilateral lower extremities. He rated his average pain as 8/10 on a pain scale and his worst pain as 9/10 on a pain scale (with 10/10 being the worst imaginable pain). He denied any weakness, numbness, or bowel or bladder problems. He continued to do heavy physical labor. He used a cane "off and on since surgery." Physical examination of the lumbosacral spine showed normal alignment, no ecchymosis, a well-healed mid-line surgical scar, tenderness of the spinous process at L4-5, tenderness of the paraspinal region at L3 and the iliolumbar region, normal motor strength, normal sensation, and negative straight leg raising bilaterally. The assessment included spinal stenosis of the lumbar region, spasm of back muscles, prolapsed intervertebral disc, lumbar spondylosis, degeneration of intervertebral disc, low back pain, lumbar facet joint pain, and lumbar post-laminectomy syndrome. In February 2019, the Veteran's complaints included low back pain. A history of successful lumbosacral spine fusion surgery was noted. "He states at times he feels his low back pain is worse than before the surgery...He states he remains active including heavy labor. He states he knows his limitations and working helps him especially mentally." Physical examination of the lumbosacral spine showed normal alignment, no ecchymosis, a well-healed mid-line surgical scar, no tenderness, normal motor strength, normal sensation, and negative straight leg raising bilaterally. The assessment included spinal stenosis, prolapsed lumbar intervertebral disc, lumbar post-laminectomy syndrome, lumbar spondylosis, and degeneration of lumbar intervertebral disc. Consistent with the Veteran's lay assertions, the record evidence supports assigning a higher initial 20 percent rating effective prior to June 27, 2016, and between August 1, 2016, and August 17, 2020, for his service-connected lumbosacral spine disability under DC 5241. Id. It shows that this disability is manifested by, at worst, forward flexion to 60 degrees with pain during this time period (as seen on VA examination in February 2012). The Veteran's private outpatient treatment records dated during this time period also show that he complained of low back pain before and after his spinal fusion surgery in June 2016. Range of motion testing of the spine was normal in November 2016. These records also show that he participated in ongoing heavy physical activity during this time period despite his complaints of low back pain and with an acknowledgment of his limitations. There is no indication that forward flexion is limited to 30 degrees or less or he experienced ankylosis (whether favorable or unfavorable) of the thoracolumbar spine or the entire spine such that an initial rating greater than 20 percent is warranted during this time period under DC 5241. Id. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an initial 20 percent rating prior to June 27, 2016, and between August 1, 2016, and August 17, 2020, for a lumbosacral spine disability are met. In contrast, the record evidence does not support assigning an initial rating greater than 40 percent effective August 17, 2020, for the service-connected lumbosacral spine disability. It shows instead that this disability is manifested by, at worst, forward flexion to 30 degrees due to pain, fatigue, weakness, and lack of endurance with repetitive use over a period of time. VA back (thoracolumbar spine) conditions DBQ on August 17, 2020, documented the Veteran's complaints of back stiffness, decreased range of motion, mobility, and endurance, and an inability to move around. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. A history spinal fusion surgery was noted. The Veteran denied experiencing flare-ups of low back pain. He experienced functional impairment or functional loss with difficulties sitting, standing, and "driving for long periods of time," and problems lifting, bending over, and reaching down. Range of motion testing of the lumbosacral spine showed flexion to 40 degrees with pain and an inability to reach below the waistline. There was no additional limitation of motion on repetitive range of motion testing. The VA examiner estimated forward flexion to 30 degrees due to pain, fatigue, weakness, and lack of endurance with repetitive use over a period of time. Physical examination of the lumbosacral spine showed guarding not resulting in abnormal gait or spinal contour, normal sensation, positive straight leg raising bilaterally, and no ankylosis or intervertebral disc syndrome. The diagnoses included degenerative disc disease with scoliosis and residuals of lumbar spine fusion with radiculopathy involving both sciatic nerves. The Board acknowledges that the symptomatology attributable to the Veteran's service-connected lumbosacral spine disability worsened effective August 17, 2020. VA examination conducted on that date showed lumbosacral spine flexion to 30 degrees due to pain, fatigue, weakness, and lack of endurance with repetitive use over a period of time. This finding on physical examination supports the higher initial 40 percent rating assigned effective August 17, 2020, for the service-connected lumbosacral spine disability under DC 5241. Id. There is no indication that, effective August 17, 2020, the Veteran experienced unfavorable ankylosis of the entire thoracolumbar spine or the entire spine as is required for an initial rating greater than 40 percent for his service-connected lumbosacral spine disability under DC 5241. Id. The August 17, 2020, VA back (thoracolumbar spine) conditions DBQ examiner specifically found no ankylosis present on physical examination of the lumbosacral spine. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 40 percent effective August 17, 2020, for his service-connected lumbosacral spine disability. In summary, the Board finds that the criteria for an initial rating greater than 40 percent effective August 17, 2020, for a lumbosacral spine disability have not been met. 4. Entitlement to an initial 20 percent rating for radiculopathy of the right lower extremity The Board next finds that the evidence supports assigning an initial 20 percent rating for radiculopathy of the right lower extremity. The Veteran essentially contends that his service-connected radiculopathy of the right lower extremity is more disabling than currently (and initially) evaluated before and after August 17, 2020. The Board notes initially that the service-connected radiculopathy of the right lower extremity currently is evaluated as 10 percent disabling effective prior to August 17, 2020, and as 20 percent disabling thereafter under DC 8520. See 38 C.F.R. § 4.124a, DC 8520. The record evidence supports assigning an initial 20 percent rating for this disability throughout the appeal period (i.e., before and after August 17, 2020). It shows that this disability is manifested by, at worst, moderate incomplete paralysis of the sciatic nerve throughout the appeal period. For example, on VA back (thoracolumbar spine) conditions DBQ in February 2012, physical examination showed radiculopathy with moderate constant pain of the right lower extremity, mild intermittent pain of the right lower extremity, and mild paresthesias and/or dysesthesias of the right lower extremity. The Veteran's radiculopathy involved the right sciatic nerve. Subsequent VA back (thoracolumbar spine) conditions DBQ in August 2020 documented radiculopathy with moderate intermittent pain of the right lower extremity, moderate paresthesias and/or dysesthesias of the right lower extremity, and mild numbness of the right lower extremity. The Veteran's radiculopathy again involved the right sciatic nerve. On VA peripheral nerves conditions DBQ in August 2020, the Veteran's complaints included worsening pain, numbness, and tingling of the right lower extremity. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran's symptoms included moderate intermittent pain of the right lower extremity, moderate paresthesias and/or dysesthesias of the right lower extremity, and mild numbness of the right lower extremity. Physical examination showed hypoactive reflexes in the knees and ankles, decreased sensation of the right lower extremity, and mild incomplete paralysis of the right lower extremity. The diagnoses included radiculopathy of the right lower extremity. Taken together, the record evidence as a whole supports assigning a higher initial 20 percent rating for the Veteran's service-connected radiculopathy of the right lower extremity throughout the appeal period under DC 8520. Id. Medical evidence dated before and after August 17, 2020, shows that he experiences, at worst, moderate incomplete paralysis of the sciatic nerve due to moderate constant pain of the right lower extremity (noted on VA examination in February 2012) and moderate intermittent pain of the right lower extremity and moderate paresthesias and/or dysesthesias of the right lower extremity (noted on VA examinations in August 2020). These consistent physical examination findings support the assignment of an initial 20 percent rating for the service-connected radiculopathy of the right lower extremity throughout the appeal period under DC 8520. Id. There is no indication that the Veteran experiences at least moderately severe incomplete paralysis of the sciatic nerve (i.e., a 40 percent rating under DC 8520) as a result of his service-connected radiculopathy of the right lower extremity such that an initial rating greater than 20 percent is warranted at any time during the appeal period. Id. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an initial 20 percent rating for radiculopathy of the right lower extremity have been met. 5. Entitlement to an initial compensable rating for a right knee scar The Board finally finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an initial compensable rating for a right knee scar. Contrary to his lay assertions, the record evidence shows that his service-connected right knee scar has not resulted in compensable disability at any time during the appeal period. For example, on VA knee and lower leg conditions DBQ in February 2012, physical examination of the right knee showed a scar which was not painful and/or unstable. Subsequent VA knee and lower leg conditions DBQ in August 2020 found no knee scars on physical examination. On VA scars DBQ in August 2020, there were no scars found on the Veteran's right knee. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial compensable rating for his service-connected right knee scar at any time during the appeal period. In summary, the Board finds that the criteria for an initial compensable rating for a right knee scar have not been met. 6. Entitlement to a TDIU The Veteran seeks a total disability rating based on individual unemployability. He asserts he has been unable to work due to his service-connected disabilities. The Veteran is in receipt of a 100 percent schedular rating for persistent depressive disorder from July 18, 2012; however, this does not preclude him from being warranted entitlement to a TDIU during this time period and prior. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Factors to be considered in determining whether unemployability exists are the Veteran's education, employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). For a Veteran to prevail on a claim of entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence shows that the Veteran completed high school. He then served in the Marine Corp for twenty years. He is trained in aircraft firefighting and rescue. After retiring from service, he worked as a cable locator for a year and then worked as a construction supervisor for eleven years. He indicated that he stopped working in 2010 after his third spinal fusion. He worked part time for Walmart for one year during 2011 and 2012, but he was unable to sustain the physical demands of the job or the interaction with customers, coworkers, and supervisors. Beginning April 11, 2011, the Veteran was rated at 60 percent disabled based on ratings assigned for the lumbar spine (10 percent); osteoarthritis of the right knee (20 percent); instability of the right knee (20 percent); radiculopathy of the right lower extremity (10 percent); radiculopathy of the left lower extremity (10 percent); and a scar of the right knee (0 percent). The combined rating from April 11, 2011 is 60 percent. In addition, all disabilities in effect at that time are considered a single disability for the purposes of determining whether the Veteran meets the schedular criteria for a TDIU, because all of the disabilities are of the same body system or come from the same etiology. Therefore, the Veteran met the schedular criteria for TDIU consideration from April 11, 2011. The Board finds that, based upon the evidence of record, and giving the Veteran every benefit of the doubt, his service-connected disabilities rendered him unable to secure or follow substantially gainful employment from April 11, 2011. 38 C.F.R. § 4.16 (a); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board takes as credible the Veteran's various statements given during VA examinations regarding his educational and occupational history. Even though he reported some work during 2011 and 2012, it is clear that it was part time, and the Veteran was forced to resign after a short period of time due to his disabilities. Given the Veteran's various physical and mental disabilities, the Board finds that the weight of the evidence is in at least relative equipoise and therefore the Veteran is entitled to TDIU from April 11, 2011. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.