Citation Nr: 21070950 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 14-06 489 DATE: November 27, 2021 ORDER From October 15, 2008, to July 16, 2012, entitlement to an initial rating of 40 percent, but no greater, for lumbar spondylosis with intervertebral disc disease (IVDS) is granted. From July 17, 2012, to September 23, 2019, entitlement to a rating of 40 percent, but no greater, for lumbar spondylosis with IVDS is granted. From October 15, 2008, to June 16, 2009, entitlement to an initial rating of 40 percent, but no greater, for right lower extremity radiculopathy is granted. From June 17, 2009, entitlement to a rating of 40 percent, but no greater, for right lower extremity radiculopathy is granted. From October 15, 2008, to June 16, 2009, entitlement to an initial rating of 40 percent, but no greater, for left lower extremity radiculopathy is granted. From June 17, 2009, entitlement to a rating of 40 percent, but no greater, for left lower extremity radiculopathy is granted. From October 15, 2008, entitlement to a total disability rating due to individual unemployability is granted. From October 15, 2008, entitlement to special monthly compensation at the housebound rate is granted. FINDINGS OF FACT 1. From October 15, 2008, to July 16, 2012, the Veteran's lumbar spondylosis with intervertebral disc disease (IVDS) is characterized by forward flexion of 60 degrees with functional loss during flareups. 2. From July 17, 2012, to September 23, 2019, the Veteran's lumbar spondylosis with IVDS is characterized by forward flexion of 45 degrees with functional loss during flareups. 3. From October 15, 2008, to June 16, 2009, the Veteran's right lower extremity radiculopathy is characterized by moderately severe, incomplete paralysis. 4. From June 17, 2009, the Veteran's right lower extremity radiculopathy is characterized by moderately severe, incomplete paralysis. 5. From October 15, 2008, to June 16, 2009, the Veteran's left lower extremity radiculopathy is characterized by moderately severe, incomplete paralysis. 6. From June 17, 2009, the Veteran's left lower extremity radiculopathy is characterized by moderately severe, incomplete paralysis. 7. From October 15, 2008, the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. 8. From January 11, 2010, the Veteran is in receipt of TDIU due to his back disability and radiculopathy alone and he has additional disability rated at least 60 percent disabling. CONCLUSIONS OF LAW 1. From October 15, 2008, to July 16, 2012, the criteria for an initial disability rating of 40 percent, but no greater, for lumbar spondylosis with intervertebral disc disease (IVDS) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5239. 2. From July 17, 2012, to September 23, 2019, the criteria for a disability rating of 40 percent, but no greater, for lumbar spondylosis with IVDS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5239 3. From October 15, 2008, to June 16, 2009, the criteria for an initial disability rating of 40 percent, but no greater, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8620. 4. From June 17, 2009, the criteria for a disability rating of 40 percent, but no greater, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8620. 5. From October 15, 2008, to June 16, 2009, the criteria for an initial disability rating of 40 percent, but no greater, for left lower extremity radiculopathy 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 June 17, 2009, the criteria for a disability rating of 40 percent, but no greater, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8520. 7. From October 15, 2008, 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. 8. From January 11, 2010, the criteria for an award of special monthly compensation at the housebound rate have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to October 1988. This matter is on appeal from an August 2010 rating decision. In March 2017, the Veteran appeared at a hearing before the undersigned. This matter was previously remanded in June 2017, March 2018, May 2018, and July 2020. Increased Rating 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 October 15, 2008, the Veteran filed a claim of service connection for a back disorder. In August 2010, the RO granted service connection at an initial rating of 10 percent under Diagnostic Code 5239. He is now rated at 10 percent from October 15, 2008, 20 percent from July 17, 2012, and 40 percent from September 23, 2019. In July 2020, the Board granted a rating of 40 percent from September 23, 2019, and remanded entitlement to an increased rating prior to this date. The Board will consider evidence of symptomatology prior to September 23, 2019. In an October 2008 claim, the Veteran states that he is taking medication for his back disorder. In an October 2008 statement, the Veteran indicates that his back disorder impacts his ability to work. In an April 2009 statement, a friend describes difficulty walking, missing youth football practices, and inability to drive due to back pain. In a November 2008 statement, a friend describes the Veteran experiencing flareups after "[m]inimal tasks" that "require [the Veteran] to rest with a heating pad on his lower back." In a February 2009 VA examination, the Veteran indicates back pain but states that he "does not wear a back brace or belt" or cane. The pain radiates down both legs. Forward flexion is 0 to 60 degrees. There is no functional loss with repetitive motion. In a March 2009 VA medical record, the Veteran reports flareups resulting in increased pain. This pain prohibits him from hiking long distances, driving more than 30 minutes, and running a sweeper at home. In the February 2010 DRO hearing transcript, the Veteran describes having an abnormal gait due to back pain. He also describes how during his last examination his examiner was not positioned to observe how much pain he was experiencing. A March 2010 VA medical opinion describes treatment for back pain and ascribes the Veteran's altered gait to his foot injury. The July 2012 VA back examination indicates "chronic and severe" low back pain. The Veteran experiences flareups, during which he increases medication and requires bed rest. Forward flexion is 40 degrees. The Veteran can perform repetitive-use testing with three repetitions with no additional loss in range of motion but functional loss reflected by less movement than normal and pain on movement. The Veteran has intervertebral disc disease (IVDS) but there have been no incapacitating episodes associated with IVDS. There is no ankylosis. Functional impact is described as follows: "The impact of the thoracolumbar spine condition on the claimant's ability to work is that he cannot lift more than 15 lbs, kneel, bend over more than 3 times, mop, mow[] grass, wash a car, nor dig holes for plants." A December 2013 VA medical record describes treatment for "an acute flare of back pain." In an April 2014 statement, the Veteran's wife describes how the Veteran's back pain affects his daily life. His pain is constant and prohibits him from performing the most simple daily tasks like running the vacuum, or taking out the trash. He cannot go shopping for more than 30 minutes, ride bikes, or walk. In a February 2015 letter, the Veteran's wife explains that because of back pain her husband is limited in the activities that he can perform and no longer shovels snow, runs the vacuum, or takes out the trash. A February 2017 VA medical record indicates "chronic complaints of low back pain radiating on the posterior aspect of the right lower extremity in L5 distribution ... since 10 years ago." In the March 2017 hearing transcript, the Veteran indicates that he cannot stand or walk for more than 30 minutes. If he does, "[t]he pain level definitely increases and [he pays] for it the next few days by not being able to do anything" other than "the minimal taking care of [himself]." Additionally, he has flareups "a few times a year" where he is essentially incapacitated and has to stay in a chair "for a few days." An April 2018 VA back examination indicates "chronic daily low back and radiculopathy pain involving both lower extremities." The Veteran's "pain will increase with prolonged periods of weight bearing, ambulation, repetitive range of motion or lifting." Such flareups "usually [occur] one time every 2-3 months lasting 4-5 days requiring bedrest." Forward flexion is 0 to 50 degrees. There is pain on weight-bearing. The Veteran can perform repetitive-use testing with three repetitions and no additional loss of function or range of motion. There are muscle spasms and guarding resulting in abnormal gait or abnormal spinal contour. There is no ankylosis. There is IVDS but no episodes requiring physician-prescribed bed rest. Regarding the ability to work, his back disorder "would impair his ability for physical work requiring any prolonged periods of ambulation, weight bearing, repetitive bending or lifting." The September 2019 VA back examination describes "chronic back and right leg pain" that is "getting worse with time." The Veteran experiences "periodic flares lasting 5 days." Forward flexion is 0 to 45 degrees. The Veteran can perform repetitive-use testing with three repetitions and no additional loss of function or range of motion. Pain, fatigue, and lack of endurance significantly limit functional ability with repeated use over time. There is abnormal gait or spinal contour due to muscle spasms and guarding. There is no ankylosis. There is IVDS but there have been no acute episodes requiring physician-prescribed bed rest over the past 12 months. The Veteran regularly uses a cane. The Veteran's back disorder does not prohibit sedentary work. An April 2021 VA medical opinion states that "the severity of back pain and radiculopathy has not significantly changed from 2019 to 2021 based on physical examination." A June 2021 VA addendum opinion concludes that the Veteran did not displays "chronic gait abnormalities" for the period from 2012 to 2019 Back Analysis 1. From October 15, 2008, to July 16, 2012, entitlement to an initial rating of 40 percent, but no greater, for lumbar spondylosis with intervertebral disc disease (IVDS) 2. From July 17, 2012, September 23, 2019, entitlement to a rating of 40 percent, but no greater, for lumbar spondylosis with IVDS From October 15, 2008, to July 16, 2012, the evidence supports an initial rating of 40 percent. In the February 2009 VA examination, forward flexion of 60 degrees supports an initial rating of 20 percent by itself. However, the additional evidence of limitation of motion during flareups constitutes evidence of additional functional loss. Specifically, the Veteran describes painful motion and limited mobility after periods of slight exertion. This evidence supports an initial rating of 40 percent. From July 17, 2012, to September 23, 2019, the evidence also supports a rating of 40 percent. The April 2018 VA back examination indicates forward flexion of 50 degrees. The September 2019 VA back examination indicates forward flexion of 45 degrees. These values, by themselves, support a rating of 40 percent. However, the additional evidence of limitation of motion during flareups constitutes evidence of additional functional loss. Specifically, statements from the Veteran and his wife consistently indicate that the Veteran regularly experiences flareups resulting in immobility or very painful motion. This evidence supports a rating of 40 percent. The preponderance of the evidence is against an initial rating in excess of 40 percent, in that there is no evidence or argument that the Veteran suffers from unfavorable ankylosis of any part of the spine, including during flareups or following repeated use over time. For these reasons, entitlement to a rating in excess of 40 percent is denied. 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. Diagnostic Code 8620 provides compensation for neuritis of the sciatic nerve. 38 C.F.R. § 4.124a. Neuritis is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 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. Radiculopathy Evidence 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 October 15, 2008. In a February 2009 VA examination, the Veteran indicates back pain that radiates down both legs. There is no functional loss with repetitive motion. In a July 2009 "Symptoms Support" the Veteran states that his "left leg tingles & hurts from hip down to toes." Additionally, he states that his "right leg loses feeling at times, like there is nothing there" and that there is "horrible pain when [he tries] to bend it." In the February 2010 DRO hearing transcript, the Veteran describes incapacitating "pain shooting up and down [his] left leg" since 2008. The July 2012 VA nerves examination indicates right lower extremity radiculopathy with moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, and an overall severity of moderate, incomplete paralysis. The examination indicates that there is no left lower extremity radiculopathy. Functional impact is described as follows: "The impact of the peripheral neuropathy on the claimant's ability to work is that he cannot squat more than 3 times, kneel at all, bend over more than 3 times, walk up more than 100 steps, nor lift more than 15 lbs." January 2013 and February 2013 VA medical records describe low back pain "with right radicular components" that have been "ongoing for about 3 [years]." The pain is "low-level continuous with exacerbations." A March 2013 VA medical record describes low back pain that "occasionally radiates into right buttock & posterior aspect right leg." This pain is "intermittent/has occurred only twice since" a procedure conducted the prior month. There is "[n]o left sided pain." In a February 2017 VA medical record the Veteran describes "lumbosacral region and radicular right buttock." This pain "impact[s] his quality of life," an example being unable to shovel snow because of pain. A February 2017 VA medical record indicates "chronic complaints of low back pain radiating on the posterior aspect of the right lower extremity in L5 distribution ... since 10 years ago." In the March 2017 VA hearing transcript, the Veteran describes his radiculopathy symptoms as follows: "You know, for the most part it's on the right side but it has gone to the left side where it starts at the butt cheek and just kind of works its way down the leg." He later clarified that the left leg experiences intermittent tingling in his "first couple of toes," but not his entire foot. A February 2018 VA medical record indicates low back pain with "lumbar radiculopathy, R > L with more recent exacerbation of the right-sided radic[ulopathy]." A later February 2018 VA medical record indicates a "chronic history of back and right lower extremity pain ...." The Veteran rates his right lower extremity pain "as moderate to severe" and states that this pain "increases with walking." An April 2018 VA medical record indices "[c]hronic radicular symptoms with recent exacerbation" but states that "[a]n EMG on January 3, 2018 indicates no left-to-right radiculopathy." An April 2018 VA back examination indicates "chronic daily low back and radiculopathy pain involving both lower extremities." The Veteran's "pain will increase with prolonged periods of weight bearing, ambulation, repetitive range of motion or lifting." Such flareups "usually [occur] one time every 2-3 months lasting 4-5 days requiring bedrest." Senses are decreased for the right foot/toes but otherwise normal. For the right lower extremity, there is mild constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, and an overall severity of moderate, incomplete paralysis. The examiner indicates that there is no left lower extremity radiculopathy. Regarding the ability to work, his back disorder "would impair his ability for physical work requiring any prolonged periods of ambulation, weight bearing, repetitive bending or lifting." The September 2019 VA back examination describes "chronic back and right leg pain" that is "getting worse with time." The Veteran experiences "periodic flares lasting 5 days." For the right lower extremity, there is mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, and overall severity of moderate, incomplete paralysis. The examiner indicates that there is no left lower extremity radiculopathy. Radiculopathy does not prohibit sedentary work. An April 2021 VA medical opinion states that "the severity of back pain and radiculopathy has not significantly changed from 2019 to 2021 based on physical examination." Radiculopathy Analysis 3. From October 15, 2008, to June 16, 2009, entitlement to an initial rating of 40 percent, but no greater, for right lower extremity radiculopathy 4. From June 17, 2009, entitlement to a rating of 40 percent, but no greater, for right lower extremity radiculopathy For the right lower extremity, there is at least intermittent pain during the period on appeal, even though the Veteran is taking pain medication. Additionally, there is consistent evidence of functional loss, reflected by the Veteran's right leg giving out. Giving the Veteran the benefit of the doubt, the Board finds that intermittent pain and functional loss while on medication constitutes evidence of moderately severe, incomplete paralysis that is consistent with a rating of 40 percent. Because the Veteran can still walk and there is no evidence of muscle atrophy, the preponderance of the evidence is against a rating of 60 percent based on severe, incomplete paralysis. A higher rating than 60 percent is not available under Diagnostic Code 8620. However, even if the Board were to rate the Veteran under Diagnostic Code 8520, a higher rating would not be available because there is no lay or medical evidence supporting any of the criteria for a rating of 80 percent under Diagnostic Code 8520. For these reasons entitlement to a rating in excess of 40 percent is denied. 5. From October 15, 2008, to June 16, 2009, entitlement to an initial rating of 40 percent, but no greater, for left lower extremity radiculopathy 6. From June 17, 2009, entitlement to a rating of 40 percent, but no greater, for left lower extremity radiculopathy For the left lower extremity, intermittent reports of left lower extremity radiculopathy constitutes evidence of intermittent pain. Further, the February 2010 DRO hearing contains evidence of functional loss, in that the Veteran describes incapacitating left leg pain since 2008. Giving the Veteran the benefit of the doubt in light of this evidence and his continued use of pain medication, the Board finds that the evidence of intermittent functional loss while on pain medication constitutes evidence of moderately severe, incomplete paralysis, so as to support an initial rating of 40 percent. Because the Veteran can still walk and there is no evidence of muscle atrophy, the preponderance of the evidence is against a rating of 60 percent based on severe, incomplete paralysis. The preponderance of the evidence is also against a rating of 80 percent, in that there is no lay or medical evidence supporting any of the criteria for a rating of 80 percent under Diagnostic Code 8520. For these reasons, entitlement to a rating in excess of 40 percent is denied. 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. VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a). The same is true for disabilities resulting from common etiology or a single accident. TDIU Evidence The Veteran is in receipt of TDIU from January 11, 2010, and seeks an earlier effective date. TDIU was awarded during the pendency of the Veteran's claim of service connection for his back disorder, filed on October 15, 2008, and granted in August 2010. The Board will consider evidence from October 15, 2008. From October 15, 2008, to January 10, 2010, the Veteran's service-connected disabilities are back disorder at 40 percent, right lower extremity radiculopathy at 40 percent, left lower extremity at 40 percent, and right foot injury at 10 percent with a combined rating of 100 percent. The Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). In a February 2010 DRO hearing transcript, the Veteran indicates that he worked as a trucker after service but has not worked since 2003. In a February 2013 VA medical record, the Veteran indicates that he is unemployed and has not worked since 2003. In his April 2014 TDIU application, the Veteran indicates that he last worked between 1996 and 2003, where he worked as a manager for a trucking company earning at least $2,400.00 per month. In a February 2015 VA mental disorders examination, the Veteran states that he "has not been employed since the 'early 2000s' when he worked as a supervisor for a trucking company." In the March 2017 hearing transcript, the Veteran indicates that he has not worked since 2003. TDIU Analysis 7. From October 15, 2008, entitlement to a total disability rating due to individual unemployability The evidence consistently indicates that the Veteran has not worked since 2003, well before the beginning of the period on appeal. Further, the evidence consistently indicates that for the period from October 15, 2008, to January 10, 2011, the Veteran's service-connected back and radiculopathy disorder alone prohibit the physical exertion required for his prior work as a truck driver. Under these facts, the Board finds that for this period the Veteran's back and radiculopathy disorders alone preclude substantially gainful employment as a truck driver. The Veteran is entitled to TDIU from October 15, 2008. Special Monthly Compensation 8. From October 15, 2008, entitlement to special monthly compensation at the housebound rate A claim for special monthly compensation is considered part and parcel of a claim for increased rating. Akles v. Derwinski, 1 Vet. App. 118 (1991). Special monthly compensation benefits at the housebound rate are predicated on the evidence of record showing that the appellant has one single disability ratable at 100 percent disabling and has additional disabilities independently ratable at 60 percent or more disabling. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Such compensation may also be granted when the claimant is permanently housebound by reason of one or more service-connected disabilities. "[S]ection 1114(s) does not limit 'a service-connected disability rated as total' to only a schedular rating of 100%, and the Secretary's current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating." Bradley v. Peake, 22 Vet. App. 280, 293 (2008). From October 15, 2008, the Veteran is in receipt of TDIU. Further, his additional service-connected disorders have a combined rating in excess of 60 percent. Specifically, from January 11, 2011, he additionally has a 70 percent rating for PTSD. The Veteran is therefore entitled to special monthly compensation at the housebound rate from October 15, 2008. The record does not support entitlement to special monthly compensation at a higher level. There is no evidence or argument that the Veteran is in need of aid or assistance of another person. The medical evidence indicates that the Veteran can still walk minimal distances, albeit with pain, so the evidence does not support a finding that the Veteran has lost the use of his lower extremities. There is no argument or evidence supporting another level of special monthly compensation. For these reasons, entitlement to special monthly compensation at other than the housebound rate is denied. 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.