Citation Nr: 21068990 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-20 380 DATE: November 17, 2021 ORDER From August 25, 2016, to June 22, 2021, entitlement to a rating of 40 percent, but no greater, for right hemilaminectomy with anterior fusion L5-S1 with disc bulge and mild neural foraminal narrowing L4-L5 is granted. From June 23, 2021, entitlement to a rating in excess of 40 percent for right hemilaminectomy with anterior fusion L5-S1 with disc bulge and mild neural foraminal narrowing L4-L5 is denied. From December 4, 2015, entitlement to an initial rating of 40 percent, but no greater, for sciatic radiculopathy of the left lower extremity is granted. From December 9, 2017, to April 23, 2019, entitlement to an initial rating of 10 percent, but no greater, for sciatic radiculopathy of the right lower extremity is granted. From April 24, 2019, entitlement to a rating of 40 percent, but no greater, for sciatic radiculopathy of the right lower extremity is granted. From December 8, 2015, entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Service connection for left knee disability is remanded. Service connection for right knee disability is remanded. FINDINGS OF FACT 1. From August 25, 2016, to June 22, 2021, the Veteran's right hemilaminectomy with anterior fusion L5-S1 with disc bulge and mild neural foraminal narrowing L4-L5 is generally by forward flexion of 40 degrees and functional loss during flareups. 2. From June 23, 2021, the Veteran's right hemilaminectomy with anterior fusion L5-S1 with disc bulge and mild neural foraminal narrowing L4-L5 is characterized by forward flexion of 10 degrees. 3. From December 4, 2015, the Veteran's sciatic radiculopathy of the left lower extremity is characterized by moderately severe, incomplete paralysis. 4. From December 9, 2017, to April 23, 2019, the Veteran's sciatic radiculopathy of the right lower extremity is characterized by mild, incomplete paralysis. 5. From April 24, 2019, the Veteran's sciatic radiculopathy of the right lower extremity is characterized by moderately severe, incomplete paralysis. 6. From December 8, 2015, the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. CONCLUSIONS OF LAW 1. From August 25, 2016, to June 22, 2021, the criteria for a disability rating of 40 percent, but no greater, for right hemilaminectomy with anterior fusion L5-S1 with disc bulge and mild neural foraminal narrowing L4-L5 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5242. 2. From June 23, 2021, the criteria for a disability rating in excess of 40 percent for right hemilaminectomy with anterior fusion L5-S1 with disc bulge and mild neural foraminal narrowing L4-L5 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5242. 3. From December 4, 2015, the criteria for an initial disability rating of 40 percent, but no greater, for sciatic radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8520. 4. From December 9, 2017, to April 23, 2019, the criteria for an initial disability rating of 10 percent, but no greater, for sciatic radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8520. 5. From April 24, 2019, the criteria for a disability rating of 40 percent, but no greater, for sciatic radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8520. 6. From December 8, 2015, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from April 1981 to October 1991. This matter is on appeal from an October 2016 rating decision. In April 2020, the above claims were subject to a Joint Motion for Partial Remand. This matter was previously remanded in September 2020 and December 2020. INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. A VA examination must address the frequency, duration, characteristics, severity, and/or functional loss during flare-ups, based on all the evidence of record, including statements from the Veteran. Sharp v. Shulkin, 29 Vet. App. 26, 3435 (2017). BACK RATING CRITERIA Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. For rating criteria pertaining to diseases of the spine, only two Diagnostic Codes 5242 and 5243 were amended in the regulations that went into effect on February 7, 2021. Prior amendments to provisions for rating spine disorders went into effect September 26, 2003. 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 (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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. Id. Under the prior regulations, Diagnostic Code 5242 provides compensation for degenerative arthritis (also 5003). 38 C.F.R. § 4.71a. Effective February 7, 2021, Diagnostic Code 5242 provides compensation for degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010). 38 C.F.R. § 4.71a. Under the prior regulations, Diagnostic Code 5243 provides compensation for intervertebral disc syndrome. 38 C.F.R. § 4.71a. Effective February 7, 2021, Diagnostic Code 5243 still provides compensation for intervertebral disc syndrome. 38 C.F.R. § 4.71a. Under the new regulations, this code is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Id. Diagnostic Code 5242 is to be assigned for all other disc diagnoses. Id. The General Rating Formula for Diseases and Injuries of the Spine was not changed under the new regulations. A 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. The Court has characterized ankylosis as "immobility and consolidation of a joint due to disease, injury or surgical procedure." E.g. Cullen v. Shinseki, 24 Vet. App. 74, 87 n.3 (2010) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (31st ed. 2007)). The requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1, 2324 (2021). Evaluations for intervertebral disc syndrome are to be performed either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Note 6. Neither provision was changed under the new regulations. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. For painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The same is true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. The Federal Circuit has upheld the validity of this regulation. Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339, 1349 (Fed. Cir. 2003). As such, the Board will proceed to adjudicate the Veteran's claim. BACK EVIDENCE On December 4, 2015, the Veteran filed a claim of service connection for a back disorder. In June 2016, the RO granted service connection at an initial rating of 10 percent from this date under Diagnostic Code 5242. In September 2020, the Board granted an initial rating of 20 percent from December 4, 2015, to August 24, 2016. Also in that decision, the Board remanded entitlement to an increased rating from August 25, 2016. This issue was again remanded in December 2020. The Veteran is rated at 40 percent from June 23, 2021 The Board has already adjudicated the Veteran's rating prior to August 25, 2016, and that issue has not been appealed. The Board therefore cannot address entitlement to an increased rating prior to August 25, 2016. Rather, the Board will adjudicate the Veteran's ratings from August 25, 2016, and consider evidence from that date. An August 2016 VA back examination describes flareups of back pain with "[p]rolonged standing and lifting and moving heavy objects ...." Functional loss is manifested by "interfere[nce] with her ability to lift and move heavy objects and to stand for prolonged periods." Forward flexion is 0 to 40 degrees. The Veteran can perform repetitive-use testing with no loss of function or range of motion. There is no ankylosis. Her back disorder impacts her ability to work, in that her "low back pain interferes with her ability to move and lift heavy objects and to stand for prolonged periods." In an October 2016 statement, the Veteran states that "[a]pproximately twice a month, [her] back gets bad enough to incapacitate her." Following these episodes, it is "normally about two days before she can walk again and four to five days before she can function anywhere near normally." A December 2017 VA medical record indicates flexion from 40-50 degrees. Pain increases with walking and "standing for long periods is the worst." When her "low back goes out, everything goes out." A February 2019 private medical record indicates back pain with "decreased range of motion" and tenderness. An October 2019 VA back examination describes "low back pain daily, moderate, severe with activity." Flare-ups occur "twice a week" for 1-2 days" and are characterized by "[p]ain severe 9-10/10 with lifting greater than 10 pounds, walking or standing too long, greater than 20 minutes, or with objects too many times or heavy." Further, "[s]he must be inactive for one day after pain increases with flare." Functional loss is manifested by the fact that the Veteran "[c]annot stand or walk more than 10 minutes without pain, standing from sitting or sitting from standing causes pain to the low back." She also experiences "[p]ain after 5 minutes washing dishes." Forward flexion is 0 to 60 degrees. The Veteran can perform repetitive-use testing with three repetitions and no additional loss of function or range of motion. The Veteran displays guarding that results in abnormal gait or abnormal spine contour. There is no ankylosis. There is IVDS, but no physician-prescribed bed rest. Regarding the ability to work, the examiner notes "[i]nability to work due to limitations with lifting, walking and standing resulting in pain secondary to" her back disorder. In the October 2020 VA back examination, the Veteran reports not being able to stand five minutes, being able to sit for only a couple of hours, and "continued pain with bending/repeated use ...." She has reports "difficulty pulling pants up," difficulty with steps, "difficulty bending," and "difficulty picking up grandchildren (2 yo & 5 yo)." Forward flexion is 75 degrees. There is no pain with weight-bearing. The Veteran can perform repetitive-use testing with three repetitions and no additional loss of function or range of motion. The Veteran experiences weekly flareups lasting two days, caused by extended exertion and characterized by pain and "[l]ack of endurance." During these times, her "husband will help her up and down stairs" and it becomes "hard to get out of the recliner or off [the] couch." During flareups she also "reports 50% movement loss" but "does not report <30 degrees" flexion. Based on this testimony, the examiner estimates forward flexion during flareups to be limited to 40 degrees. There is no ankylosis. There is IVDS but no physician-prescribed bed rest. There is no pain on passive range of motion. Regarding the ability to work, the Veteran's back disorders limits standing to less than 5 minutes, limits walking to less than one hour, sitting to less than one hour, and prohibits frequent/prolonged bending. The July 2021 VA back examination indicates "low back pain constantly at a 6/10." The Veteran denies flare-ups. She "has difficulty putting on her socks and shoes" and "cannot pick up her small grandson." Forward flexion is 10 degrees. The Veteran can perform repetitive-use testing with three repetitions and no additional loss of function or range of motion. With repeated use over time, functional loss is manifested by pain and lack of endurance with forward flexion reduced to 5 degrees. There is localized tenderness that does not result in abnormal gait or spinal contour. There is no ankylosis. The Veteran has IVDS but there have been no episodes of physician-prescribed bed rest over the last 12 months. Regarding the ability to work, the "Veteran would have difficulty with prolonged sitting, standing, walking, lifting, bending, and squatting." BACK - ANALYSIS 1. From August 25, 2016, to June 22, 2021, entitlement to a rating of 40 percent, but no greater, for right hemilaminectomy with anterior fusion L5-S1 with disc bulge and mild neural foraminal narrowing L4-L5 2. From June 23, 2021, entitlement to a rating in excess of 40 percent for right hemilaminectomy with anterior fusion L5-S1 with disc bulge and mild neural foraminal narrowing L4-L5 From August 25, 2016, the evidence is consistent with a rating of 40 percent. The August 2016 VA back examination indicates forward flexion of 40 degrees, which by itself supports a rating of 20 percent. However, there is additional evidence of functional loss during flareups, as reflected in statements made to the August 2016 examiner about functional loss, as well as the Veteran's October 2016 statement about incapacitating episodes. The evidence of forward flexion of 40 degrees with functional loss supports a rating of 40 percent. The December 2017 VA medical record indicates forward flexion of 40 degrees with periods of the back going out. This range of motion coupled with functional loss during flareups is also consistent with a rating of 40 percent. The October 2019 VA back examination indicates forward flexion of 60 degrees, which by itself supports a rating of 20 percent. However, functional loss is manifested during flareups as limited standing, sitting, and lifting. This range of motion coupled with functional loss during flareups is consistent with a rating of 40 percent. The October 2020 VA back examination indicates forward flexion of 75 degrees normally and 40 degrees during flareups. These measurements by themselves support a rating of 20 percent. However, functional loss is manifested during flareups as difficulty standing, inability to pick up her grandchildren, and requiring assistance with chairs. This range of motion coupled with functional loss during flareups is also consistent with a rating of 40 percent. The July 2021 VA back examination indicates forward flexion of 10 degrees. This range of motion is consistent with a rating of 40 percent. From August 25, 2016, the preponderance of the evidence is against a rating in excess of 40 percent, in that there is no evidence of unfavorable ankylosis for any part of the spine during this time period. For this reason, from August 25, 2016, the preponderance of the evidence is against a rating in excess of 40 percent. In an August 2021 letter, the Veteran's attorney argues that the recent VA examination is inadequate with respect to the Veteran's initial rating. The attorney's rationale is that the examiner found that providing an opinion on prior exams would be mere speculation. Even taken as true, the Board has nevertheless found that the evidence discussed above is sufficient to support an increased staged rating for the period on appeal without any need for further clarification. It is not clear how additional clarification would support a higher rating, in that the medical evidence specifically indicates that there is no ankylosis and the Veteran is already being awarded the maximum rating possible for her back disorder based on forward flexion of 70 degrees with functional loss. In light of the Board's award of benefits in this decision and the evidence of record, the Board finds that further clarification of the Veteran's back symptoms by way of a retrospective medical opinion would be futile. Giving the Veteran the benefit of the doubt in light of the evidence of record, the Veteran is already being awarded the maximum ratings for the period on appeal. RADICULOPATHY RATING CRITERIA Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Under that code, a 10 percent rating is provided for mild, incomplete paralysis. Id. A 20 percent rating is provided for moderate, incomplete paralysis. Id. A 40 percent rating is provided for moderately severe, incomplete paralysis. Id. A 60 percent rating is provided for severe, incomplete paralysis with muscular atrophy. Id. An 80 percent rating is provided for complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement is possible for muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement. Id. The words "slight," "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board has jurisdiction to consider the proper rating for radiculopathy as part of an appeal of an increased rating for a low back disability rating. Chavis v. McDonough, 34 Vet. App. 1, 33 (2021) ("VA's consideration of ... neurologic manifestations as part of the claim seeking higher compensation for the lumbar spine disability is ... consistent with VA's duty to sympathetically read pro se pleadings."). As service connection for radiculopathy was granted as part of an increased rating appeal for the Veteran's low back disorder, the Board shall consider the period on appeal as extending back to December 4, 2015. RADICULOPATHY EVIDENCE A December 2015 private medical record following a car accident describes pain in the Veteran's "left hip down through her knee" but states that there is "[n]o pain in her right leg ...." In the March 2016 VA back examination, the Veteran describes "a warm sensation that shoots down her left leg" but "denies radiation of pain." The examiner indicates that there is no radiculopathy. In an April 2016 private medical record, the Veteran describes "additional pain in her back and left leg" following an injection for back pain. In a June 2016 statement, the Veteran states that when receiving an injection for back pain, "the left sciatic nerve was 'hit,'" resulting in "problems with her left leg giving out." In a June 2016 VA medical record, the Veteran describes "left leg pain after initial injection" for back pain. An August 2016 VA back examination notes that the Veteran "occasionally experiences paresthesias radiating down the posterior aspect of the left leg." Notwithstanding, the examiner states that there is "[n]o objective evidence of left sciatica found on today's exam." A December 1, 2017 private medical record indicates "[o]ngoing pain and numbness in [left] leg, sometimes with sciatic [symptoms]." A December 8, 2017 private medical record indicates left sciatic pain only, which has flared up with changes in the weather. A December 18, 2017 VA medical record indicates that left leg pain "will flare up every once in a while" and "increase[] when it gets cold." Because of this pain the Veteran "cannot stand for very long" and "when she is really hurting she has a tough time with walking." There is also pain in her right lower extremity, although less pain in the right side than the left side. A December 2017 VA medical record describes "enduring low back pain and radicular left lower extremity pain" and states: "Clinical presentation is indicative of LEFT S1 RADICULOPATHY" (emphasis in original). A January 2018 private medical record indicates that there is no "radiating pain other than the chronic [left] leg pain as previously reported." A February 2018 private medical record states: "The patient has a fairly long-standing history of left-sided radicular pain and numbness." This record also indicates a preoperative diagnosis of "[l]eft-sided lumbosacral radiculitis" and states that the Veteran "has a history of left-sided radicular pain as well as lumbar spine surgery." A second February 2018 private medical record indicates that there is no "radiating pain other than the into [left] leg, ongoing." A third February 2018 private medical record indicates that there is "[n]o radiating pain other than the chronic [left] leg pain." A March 2018 private medical record describes "sleep pain mainly in the lower back radiating down the left lower extremity" with "some pain down the right lower extremity." A May 2018 private medical record describes how following an epidural steroid injection the Veteran has experienced "some residual heaviness ... suggesting [of] L5-S1 radicular pain." This "pain is just starting to come back and radiate into the hips but [is] not all the way down the lower extremity." A February 2019 private medical record states that the Veteran's back pain "does continue to radiate into the left hip and sometimes the right." This record lists "radiculopathy" as part of the Veteran's past medical history. A February 2019 private medical record indicates "[c]hronic bilateral low back pain without sciatica." An April 2019 private medical record states that the Veteran's back pain is "at a 5 on a 0-10 pain scale" and "does radiate into the hips at times." This same record lists "radiculopathy" as part of the Veteran's past medical history. But this record later indicates "[c]hronic bilateral low back pain without sciatica" and describes pain radiating towards "bilateral hips" with "[n]o radicular pain." A June 2019 private medical record indicates pain radiating towards "right hip" but "[n]o radicular pain." A September 2019 private medical record describes "a 60% decrease in her pain" such that "[s]he has better range of motion and can stand for longer periods of time." This "pain is more severe on the right side but [she] does have it on the left." The severity of the pain is 5/10. An October 2019 VA medical opinion notes "persistent pain with radiculopathy to the [left lower extremity] that has increased to radiculopathy that includes one or the other of both lower extremities in the past year." An October 2019 VA nerves examination indicates "radiculopathy to bilateral lower extremities described as sacral pain, aching to the entire legs, numbness to the thighs bilaterally." On a daily basis, pain is "moderate 6/10," but "four times a month severe 10/10" and with "sitting or standing too long 7/10. She visits a chiropractor monthly, stretches daily, and self-treats several times a week with heat pads and ibuprofen. For both extremities, the examiner indicates no constant pain, intermittent moderate pain, mild numbness, mild paresthesias and/or dysesthesias, and an overall severity of mild, incomplete paralysis. Muscle strength, reflexes, and sensation are all normal. There is no muscle atrophy. Gait is normal. The Veteran does not use assistive devices. The examiner indicates that the Veteran's nerve disorder results in her "legs giving out" after extended periods of standing, walking, and lifting. An October 2019 VA back examination describes "[r]adiculopathy with activity, weight bearing, bending to bilateral buttocks." This bilateral sciatic radiculopathy is characterized by no constant pain, mild intermittent pain, mild numbness, no paresthesias/dysesthesias, and an overall severity of mild. A June 2020 private medical record indicates that the Veteran's radiating back pain is "worse on right." An October 2020 VA back examination describes pain "radiating towards buttocks." The Veteran "denies numbness/tingling/pain down either leg" but "reports 'legs giving out ....'" For ankle plantar flexion, ankle dorsiflexion, and great toe extension, the October 2020 VA back examination indicates muscle strength of 4/5 for the left side and 5/5 for the right side. Ankle deep tendon reflexes are hypoactive on the left side and normal for the right side. For the lower leg/ankle and foot/toes, light touch sensation is decreased on the left side and normal on the right side. Left sciatic radiculopathy is characterized by mild, incomplete paralysis with no constant pain, no intermittent pain, no paresthesias and/or dysesthesias, and mild numbness. The examiner indicates that there is no right lower extremity sciatic radiculopathy. The July 2021 VA back examination indicates "pain down both sides into her buttocks, but worse on right side extending all the way into her right ankle at times." This pain worsens with exertion. "[H]er legs will randomly give out" and "she has experienced numerous falls because of this." This examination identifies bilateral sciatic radiculopathy. The left side displays no symptomatology. The right side displays mild constant pain, moderate intermittent pain, mild numbness, and mild paresthesias and/or dysesthesias. RADICULOPATHY ANALYSIS 1. From December 4, 2015, entitlement to an initial rating of 40 percent, but no greater, for sciatic radiculopathy of the left lower extremity In May 2020, the RO granted service connection for sciatic radiculopathy of the left lower extremity at an initial rating of 10 percent from June 19, 2016, under Diagnostic Code 8520. As this issue was decided during the pendency of the appeal of the Veteran's back rating, the Board can decide this issue and will consider evidence from December 4, 2015. See Chavis, 34 Vet. App. at 33 ("VA's consideration of ... neurologic manifestations as part of the claim seeking higher compensation for the lumbar spine disability is ... consistent with VA's duty to sympathetically read pro se pleadings."). The earliest evidence of left lower extremity symptomatology is from the December 8, 2015 private medical record, in which following a car accident the Veteran describes pain in "her left hip down through her knee ...." Starting in March 2016, subsequent medical records and statements consistently indicate the presence of neurological symptoms in her left lower extremity. Giving the Veteran the benefit of the doubt, from December 4, 2015, the Board shall assign a rating for sciatic radiculopathy of the left lower extremity. There is consistent evidence of functional loss associated with the Veteran's sciatic radiculopathy of the left lower extremity. Her June 2016 statement describes her "left leg giving out." A December 2017 statement describes flares of left leg pain, during which "she cannot stand for very long" and "has a tough time with walking." The October 2019 VA nerves examination and October 2020 VA back examination also report her legs giving out. This evidence is consistent with a rating of 40 percent based on moderately severe, incomplete paralysis, in that such symptomatology is more than "wholly sensory" and indicates functional loss. The Board notes that the medical reports of the Veteran's symptoms are highly variable. There are stretches where medical records make no reference to her legs giving out. Some records indicate that there is no radiculopathy, while others describe only intermittent pain, and others that reference chronic pain. As there is a question of fact as to the overall severity of the Veteran's disorder, the Board will resolve doubt in her favor and assign an initial rating of 40 percent from December 4, 2015. The preponderance of the evidence is against an initial rating in excess of 40 percent. There is no lay or medical evidence of muscle atrophy so as to support a rating of 60 percent. There is no lay or medical evidence of complete paralysis, foot drop, loss of active movement below the knee, or weakened knee flexion. For these reasons, the preponderance of the evidence is against an initial rating in excess of 40 percent for sciatic radiculopathy of the left lower extremity. 2. From December 9, 2017, to April 23, 2019, entitlement to an initial rating of 10 percent, but no greater, for sciatic radiculopathy of the right lower extremity In July 2021, the RO granted service connection for sciatic radiculopathy of the right lower extremity at an initial rating of 10 percent from June 23, 2021, under Diagnostic Code 8520. The Veteran has not appealed that decision. However, as this issue was decided during the pendency of the appeal of the Veteran's back rating, the Board can decide this issue and will consider evidence from December 4, 2015. See Chavis, 34 Vet. App. at 33 ("VA's consideration of ... neurologic manifestations as part of the claim seeking higher compensation for the lumbar spine disability is ... consistent with VA's duty to sympathetically read pro se pleadings."). Through December 8, 2017, the Veteran's lay and medical evidence make no reference to neurological symptoms in her right lower extremity. By contrast, she regularly references left lower extremity pain and functional loss. Importantly, statements referencing only left lower extremity symptomatology are commemorated medical records signed by treating physicians, dated December 2015, April 2016, June 2016, December 1, 2017, and December 8, 2017. Statements made for the purpose of medical diagnosis or treatment, such as those described above, are considered exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 356 (1992). Taken together, the Veteran specifically referenced left lower extremity symptomatology during this time period but made no reference to right lower extremity symptomatology. This constitutes strong evidence that the Veteran did not experience right lower extremity radiculopathy through December 8, 2017. The first reference to right lower extremity symptomatology is the private medical record dated December 18, 2017. Giving the Veteran the benefit of the doubt, the Board shall assume that the Veteran's right lower extremity started after December 8, 2017, and assigned the earliest possible date of December 9, 2017, for service connection for sciatic radiculopathy of the right lower extremity. From December 9, 2017, to April 23, 2019, the evidence is consistent with an initial rating of 10 percent. During this 17-month period, there are only four records indicating right lower extremity pain, dated December 2017, March 2018, February 2019, and April 2019. The latter three of these records specifically classify right lower extremity pain as occasional. Taken together, there are few references to right lower extremity symptomatology, and the majority of those few references specifically indicate sporadic pain with no reference to functional loss. This evidence is consistent with the existence of mild, incomplete paralysis. Because the pain is not chronic and there is no accompanying functional loss, the preponderance of the evidence is against the existence of moderate or moderately severe, incomplete paralysis so as to support a rating of 20 percent or greater. 3. From April 24, 2019, entitlement to a rating of 40 percent, but no greater, for sciatic radiculopathy of the right lower extremity The last reference to sporadic right lower extremity pain is dated April 23, 2019. Right hip pain is referenced in private medical records dated June 2019 and October 2019. The October 2019 VA nerves examination is the first evidence of functional loss affecting the right lower extremity, in that this examination references both "legs giving out" after extended periods of standing, walking, and lifting. The October 2020 and July 2021 VA examinations also reference both of the Veteran's legs giving out. For reasons described, evidence of the Veteran's right leg giving out is indicative of functional loss and consistent with a rating of 40 percent based on the existence of moderately severe, incomplete paralysis. There are contradictory findings regarding the severity of the Veteran's right lower extremity radiculopathy for this time period. However, the Board shall again resolve reasonable doubt in the Veteran's favor and assign a rating of 40 percent. The Board shall also resolve reasonable doubt in the Veteran's favor by assigning this rating from April 24, 2019, the day after the last private medical record referencing only occasional pain in the right lower extremity. From April 24, 2019, the preponderance of the evidence is against a rating in excess of 40 percent. There is no lay or medical evidence of muscle atrophy so as to support a rating of 60 percent. There is no lay or medical evidence of complete paralysis, foot drop, loss of active movement below the knee, or weakened knee flexion. For these reasons, the preponderance of the evidence is against a rating in excess of 40 percent for sciatic radiculopathy of the right lower extremity. TDIU An award of TDIU "does not require proving 100 percent unemployability." Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, an award of TDIU requires that the claimant show an inability "to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). When making this determination, "the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (internal citations and quotations omitted). Additionally, the Board "must take into account the individual veteran's education, training, and work history" but "may not consider [nonservice]-connected disabilities or advancing age." Id. (internal citations omitted). The phrase "substantially gainful employment" has an economic component and a non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). "The economic component simply 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." Id. The noneconomic component goes to the veteran's individualized ability to secure and follow substantially gainful employment. Ray, 31 Vet. App. at 73. Attention must be given to the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy). Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, and auditory and visual limitations; whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. These factors do not constitute a checklist; rather, "discussion of any factor is only necessary if the evidence raises it." Id. When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 3132 (2007). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies to circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred one year prior to the claim, the increase is effective as of the date the increase is "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Dalton, 21 Vet. App. at 3132. TDIU EVIDENCE The Veteran is in receipt of TDIU from December 12, 2015, and seeks an earlier effective date. TDIU was awarded during the pendency of the Veteran's claim of an increased rating for depression, filed on December 4, 2015. The Board will consider evidence within the one-year period preceding the date of receipt of this claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Dalton, 21 Vet. App. at 3132. In a November 2015 VA medical record, the Veteran states "that yesterday she injured her right wrist while at work." In a later November 2015 VA medical record, the Veteran describes herself as "active at work." In a January 2016 VA medical record, the Veteran indicates that she "has lost her job due to being out from work due to [back] pain." In a February 2016 VA mental disorders examination, the Veteran states that she "has not worked since December 2015 after she was in a rollover MVA." In her August 2016 TDIU application, the Veteran indicates that she last worked as a "cashier/cleaner" on December 7, 2015. She reports her prior four positions from July 2012 to that point, in which she made at least $1,152.00 per month and as much as $2,117.50 per month. An August 2016 statement from the Veteran's last employer indicates that the Veteran last worked on December 7, 2015, and "[r]esigned due to medical concerns." In a March 2017 TDIU application, the Veteran again indicates that she last worked on December 7, 2015. She again lists her four prior jobs and indicates that between July 2012 and December 2015 she made at least $1,152.00 per month. TDIU ANALYSIS 1. From December 8, 2015, entitlement to a total disability rating due to individual unemployability (TDIU) The Veteran's testimony consistently indicates that she was working until her accident on December 7, 2015. VA medical records indicate that she was working through at least November 2015. The Veteran submitted two TDIU applications specifically listing her last day of work as December 7, 2015. Consistent with this, her last employer submitted a statement indicating that her last day of work was December 7, 2015. Further consistent with this, in February 2016 she told a VA examiner that she has not worked since December 2015. Regarding the economic component of TDIU, between July 2012 and December 2015, the Veteran's minimal monthly income of $1,152.00 means that she made at least $13,824.00 per year during this period. The 2012 Poverty Threshold as defined by the U.S. Census Bureau is $11,945.00. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The 2015 Poverty Threshold is $12,331.00. See id. As the Veteran's yearly income for this time period exceeds $12,331.00, she does not meet the economic threshold for TDIU prior to December 8, 2015. However, she does meet the economic threshold from this date. Taken together, the evidence indicates that until December 7, 2015, the Veteran was working full-time and earning an income in excess of the Poverty Threshold. On December 8, 2015, she stopped working because her back disorder rendered her physically unable to work. Therefore, the Veteran is entitled to an effective date of December 8, 2015, for the award of TDIU. The preponderance of this evidence is against an effective date earlier than December 8, 2015. REASONS FOR REMAND 1. Service connection for left knee degenerative disability is remanded. 2. Service connection for right knee degenerative disability is remanded. In December 2020, the Board remanded the Veteran's knee claims, in part, for a medical opinion addressing permanent and temporary aggravation. See Ward v. Wilkie, 31 Vet. App. 233 (2019). In an August 2021 letter, the Veteran's representative argues that the prior VA medical opinion is inadequate because it did not address temporary aggravation. The Board shall remand for an addendum opinion. Additionally, on remand the RO should obtain all relevant VA treatment records dated from October 2020 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from October 2020to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, an examiner should review the entire claims file and provide the following opinions: (a.) Whether it is at least as likely as not that any knee disability, including incremental disability, was incurred in the Veteran's service. (b.) Whether the Veteran has any knee disability, including incremental disability, that is proximately due to her back disorder. (c.) Whether the Veteran has any knee disability, including incremental disability, that was aggravated by her back disorder. This must be addressed in a separate opinion from the "proximately due to" opinion. In all of these opinions, the examiner should specifically reference incremental disability. (Continued on the next page) The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.