Citation Nr: 21071499 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 07-23 963 DATE: November 30, 2021 ORDER The claim of entitlement to a 40 percent disability rating for status post open L3-4 laminectomy with fusion procedure and degenerative disc disease of the lumbar spine status post microdiskectomy and laminectomy with degenerative arthritis of the spine (lumbar spine disorder) prior to January 24, 2020, is granted, subject to the criteria applicable to the payment of monetary benefits. The claim of entitlement to a disability rating in excess of 40 percent for the service-connected lumbar spine disorder is denied. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to January 24, 2020, is granted, subject to the criteria applicable to the payment of monetary benefits. REMANDED The claim of entitlement to a higher initial disability rating for sciatic nerve radiculopathy of the right lower extremity, rated as 10 percent prior to January 24, 2020, and 20 percent disabling thereafter, is remanded. The claim of entitlement to a higher initial disability rating for sciatic nerve radiculopathy of the left lower extremity, rated as 10 percent disabling prior to January 24, 2020, and 20 percent disabling thereafter, is remanded. The claim of entitlement to a higher initial disability rating for femoral nerve radiculopathy of the right lower extremity, rated as 10 percent disabling from June 5, 2021, is remanded. The claim of entitlement to a higher initial disability rating for femoral nerve radiculopathy of the left lower extremity, rated as 10 percent disabling from June 5, 2021, is remanded. FINDINGS OF FACT 1. Prior to January 24, 2020, the Veteran's lumbar spine disorder was manifested by forward flexion estimated to be less than 30 degrees during flare-ups. There was no evidence of unfavorable ankylosis of the entire thoracolumbar spine; or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. Beginning on January 24, 2020, there was no evidence of unfavorable ankylosis of the entire thoracolumbar spine; or IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. Resolving all reasonable doubt in the Veteran's favor, prior to January 24, 2020, the evidence of record demonstrates that his service-connected disabilities rendered him unable to obtain or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to January 24, 2020, the criteria for a 40 percent rating for the service-connected lumbar spine disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5235 to 5243. 2. Beginning on January 24, 2020, the criteria for a rating in excess of 40 percent for the service-connected lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5235 to 5243. 3. Prior to January 24, 2020, the criteria for establishing entitlement to TDIU benefits have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Air Force from July 1962 to July 1966. In December 2020, the Board remanded these matters for further development. The Board finds there has been substantial compliance with its prior remand directives. During the course of the appeal, in a September 2020 rating decision, the AOJ increased the Veteran's evaluation for the lumbar spine disorder to 40 percent disabling, effective January 24, 2020. Additionally, the AOJ increased the Veteran's evaluations for radiculopathy of the left and right lower extremities to 20 percent disabling each, effective January 24, 2020. The AOJ also granted entitlement to a TDIU from January 24, 2020. In an October 2021 rating decision, the AOJ granted service connection for bilateral lower extremity radiculopathy with involvement of the femoral nerves and assigned 10 percent ratings for each lower extremity, effective June 5, 2021. Despite the increased disability ratings, the Veteran's appeal remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent AOJ decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Accordingly, the issues remain in appellate status. The Board has characterized the issues on appeal accordingly. During the course of the appeal, the AOJ granted service connection for bilateral lower extremity radiculopathy of the femoral and sciatic nerves as secondary to the lumbar spine disorder. The Board finds that the issues of entitlement to increased ratings for the bilateral lower extremity radiculopathy of the femoral and sciatic nerves are part and parcel of the Veteran's increased rating claim for the service-connected lumbar spine disorder. See Chavis v. McDonough, 34 Vet. App. 1 (2021). The Board notes that the Veteran and his spouse presented testimony before a Veterans Law Judge (VLJ) in September 2012. The VLJ who conducted the hearing subsequently left the Board before resolution of the issues on appeal. In October 2016, a letter was sent to the Veteran, which offered him the opportunity to elect to appear again for a new Board hearing. The Veteran requested a second hearing, which was held before the undersigned VLJ in August 2017. Transcripts of those proceedings have been associated with the Veteran's electronic claims file. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disability under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. 1. Entitlement to a higher disability rating for the lumbar spine disorder, rated as 20 percent prior to January 24, 2020, and 40 percent thereafter. As an initial matter, the Board notes that significant changes were made to the criteria for evaluating orthopedic disabilities under 38 C.F.R. § 4.71a, effective February 7, 2021. See 85 Fed. Reg. 76460 (Feb 7, 2021). 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. 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. Under the new criteria regulation, the criteria pertaining to rating disabilities of the spine were left unchanged. However, the new regulation that became effective February 7, 2021, specified that Diagnostic Code 5243 is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. Disabilities of the spine are evaluated under the criteria set forth in the General Rating Formula for Diseases (General Rating Formula) and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever results in the higher evaluation. See 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Under the General Rating Formula, with or without symptoms such as pain, to include whether it radiates, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, 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. Id. A 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, 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 warranted when there is forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A maximum 100 percent disability rating is warranted when there is unfavorable ankylosis of the entire spine. Id. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a. 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). After a review of all the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a 40 percent rating for his lumbar spine disorder throughout the entire period on appeal. For the period prior to January 24, 2020, VA examinations were provided in June 2009, April 2015, and June 2018. The June 2009 VA examination report included range of motion testing showing forward flexion to 60 degrees with no reduction in motion after three repetitions. The Veteran reported flare-ups that occurred at least three times per day. During the April 2015 VA examination, range of motion testing revealed forward flexion to 40 degrees. The Veteran did not report flare-ups and there was no functional loss or functional impairment. The June 2018 VA examination report showed forward flexion to 40 degrees, with no additional loss of motion with three repetitions. The VA examiner stated that it would be speculation to estimate any additional loss of motion with flare-ups or with repetitive use. However, the examiner also stated that based on the finding of no additional loss of motion with three repetitions, it was estimated that there would be no additional loss of motion with flare-ups or with repetitive use. Additional VA examinations were provided in January 2020 and June 2021. The January 2020 VA examination included range of motion measurements with forward flexion to 30 degrees. The Veteran reported daily flare-ups that were severe and lasted all day and night. The physical examination revealed forward flexion to 25 degrees with three repetitions. The examiner estimated that the Veteran would have forward flexion to 25 degrees with repeated use over time and during flare-ups. During the June 2021 VA examination, the Veteran described flare-ups that occurred every three to four weeks and lasted three days. He explained that there had been no change in his flare-ups and that his flare-ups have been the same since his initial back injury. Specifically, there had been no increase or decrease in the frequency, intensity, and duration of his flare-ups since 1965. Range of motion testing revealed forward flexion to 20 degrees, with no additional loss of motion after three repetitions. The examiner provided an estimate of forward flexion to 10 degrees with repeated use over time and during flare-ups. The June 2021 VA examiner opined that it was at least as likely as not that the Veteran had impairments during flare-ups, necessitating severe restrictions of his activity including the need for bed rest, since his surgery in 1991. The examiner estimated that the Veteran had forward flexion to 10 degrees during flare-ups since his 1991 back surgery. It was explained that his lumbar spine disorder deteriorated after his first surgery in March 1991 and that it continued to deteriorate after his subsequent surgeries. In July 2021, the VA examiner stated that there would have been a reduction in range of motion if tested in both active and passive motion during the June 2009, April 2015, June 2018, and January 2020 VA examinations. However, an estimation of any additional loss of motion would be mere speculation of the examiner and the medical community in general. Based on the above, the Board finds that a 40 percent rating is warranted for the Veteran's lumbar spine disorder throughout the entire period on appeal. The June 2021 VA examiner provided a retroactive opinion and estimated that forward flexion of the lumbar spine would be limited to 10 degrees during flare-ups for the entire period on appeal. Therefore, resolving doubt in favor of the Veteran, the Board finds that a 40 percent disability rating is warranted for the Veteran's service-connected lumbar spine disorder for the entire period on appeal under 38 C.F.R. § § 4.71a, Diagnostic Codes 5235-5243. However, the evidence does not show that a rating in excess of 40 percent is warranted for the Veteran's lumbar spine disorder at any point during the period on appeal. Specifically, the medical evidence of record shows that ankylosis has not been present at any point during the appeal period. In Chavis v. McDonough, 34 Vet. App. 1, 33-34 (2021), the Court found that when evaluating a disability under the General Rating Formula, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis; i.e., functional loss consistent with that contemplated by ankylosis. In describing his flare-ups, the Veteran stated that he cannot stand or sit for prolonged periods and had to stay in bed. Based on the medical evidence and lay statements, the Board finds that the Veteran's service-connected lumbar spine disorder is not functionally ankylosed. Additionally, the evidence does not demonstrate that the Veteran was prescribed bed rest by a physician for at least six weeks during a 12-month period. The Board acknowledges that the September 2017 disability benefits questionnaire indicated that the Veteran had IVDS with at least six weeks of bed rest prescribed by a physician during the prior 12 months. However, the other evidence of record does not support such a finding. In this regard, the April 2015, June 2018, and January 2020 VA examiners stated that the Veteran did not have IVDS. The June 2021 provided a diagnosis of IVDS and stated that the Veteran required bed rest for at least two weeks but less than 4 weeks during the past 12 months. At the August 2017 Board hearing, the Veteran was asked whether his flare-ups were incapacitating and required bed rest. The Veteran responded that he was more housebound instead of on bed rest and that there were no times when a doctor prescribed bed rest due to his lumbar spine disorder. Accordingly, a higher rating under The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against any additional increased rating, that doctrine is not applicable in the current appeal. See 38 U.S.C. § 5107 (b). 2. Entitlement to a TDIU prior to January 24, 2020. The Veteran contends that he is entitled to TDIU benefits. After reviewing the evidence of record, the Board finds that TDIU benefits are warranted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop). Id. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to January 24, 2020, service connection was in effect for degenerative arthritis of the lumbar spine, rated as 20 percent disabling; sciatic nerve radiculopathy of the bilateral lower extremities, rated as 10 percent disabling for each lower extremity, effective September 27, 2012; and lower back residual surgical scarring, rated as noncompensable. The Veteran's combined rating was 20 percent prior to September 27, 2012, 30 percent from September 27, 2012, to October 9, 2012, and 40 percent from October 10, 2012, to January 24, 2020. For purposes of establishing one 60 percent rating, disabilities resulting from common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a)(2). In this regard, the Board notes that the medical evidence clearly shows the Veteran's service-connected disorders were caused by his service-connected lumbar spine disorder. Therefore, they are considered to be a single disability because they share a common etiology. However, the combined disability rating for the disorders was not 60 percent at any point prior to January 24, 2020. As such, the schedular criteria for TDIU are not met. Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16 (b). The Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service. Id. Where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary, the claimant's case is eligible for consideration under 38 C.F.R. § 4.16 (b) by referral to the Director of Compensation Service. Id. In this regard, the case was referred to the Director of Compensation Service who, in August 2021, denied entitlement to an extraschedular TDIU. The Director opined that the Veteran was not unemployable due to his service-connected disabilities. Although the Board must refer the case to the case to the Director of Compensation to obtain a decision before awarding extraschedular TDIU benefits, the Board is not bound by the Director's determination. Anderson v. Shinseki, 22 Vet. App. 423 (2009). A July 2008 private medical record indicated that the Veteran was unable to return to work for at least another 6 weeks due to his nonservice-connected cervical spine disorder. April 2009 Social Security Administration (SSA) records showed that the Veteran's activities included taking out the garbage and walking a quarter of a mile. His duties as a truck driver required him to drive to 29 different stores from South Georgia to Florida to pick up returned merchandise. He had to lift boxes from the pallet and move the merchandise around. He also had to carry the merchandise 40 to 50 feet. He frequently lifted 50 lbs. or more. The June 2009 VA examination report indicated that the Veteran was unemployed. A June 2009 VA physical medical rehabilitation note included a statement from his physician that he would never be able to return to work as a truck driver due to his service-connected lumbar spine disorder, as well as his nonservice-connected cervical spine and right shoulder disorders. In September 2009, the Veteran reported that he last worked on October 31, 2008. A January 2011 VA treatment record indicated that the Veteran's back pain made it difficult for him to get out of the bed at times. A May 2010 VA examination noted that the Veteran retired in October 2009 due to age or duration of work and due to his service-connected lumbar spine disorder. In May 2011, the Veteran stated that he had to retire from work due to his service-connected lumbar spine disorder. He reported missing weeks of work to attend physical therapy appointments. At the September 2012 Board hearing the Veteran testified that his lumbar spine disorder made it challenging to complete his duties as a truck driver. Specifically, he was unable to sit for hours, pull the doors down, or complete the ramps due to excruciating pain. He stated that he missed work due to the pain and was eventually terminated. The Veteran stated that he worked as truck driver for many years until he was unable to fulfill the physical demands of the job. In April 2013, the Veteran underwent an L3-4 laminectomy fusion procedure. A post-operative report contained a statement from a neurosurgery physician's assistant, W.S. W.S. stated that the Veteran was unemployable due to his pre-existing disease and from his recent surgery. It was very unlikely that he would ever be able to return to gainful employment. In February 2014, W.S. stated that it was very questionable that due to his back issues and age that he could ever return to gainful employment. In June 2013, the Veteran reported that he completed high school and had no other education or training. He worked as a truck driver from February 1987 to October 2008. In April 2015, J.D., M.D. noted the Veteran's chronic low back pain and neuropathy and provided a statement that the Veteran was limited in his overall activity and had been and would continue to be unemployable. Dr. D. stated that it was very unlikely that the Veteran would be able to improve to the point for employment in the future. The April 2015 VA examiner considered the Veteran's past work history as a long-distance truck driver and the medical fact that he underwent three back surgeries and concluded that it was highly unlikely that he would be capable of working as a truck driver. The examiner further explained that most employers would not hire the Veteran with his history of three back surgeries. In July 2015, the Veteran reported that he completed a commercial driver's license training program in September 1970. At the August 2017 Board hearing, the Veteran testified that his lumbar spine disorder made it difficult to sit or stand for prolonged periods. The June 2018 VA examiner described the functional impact of the lumbar spine disorder as pain with lifting greater than 20 pounds and with prolonged standing/sitting. The January 2020 VA examination reported noted that the Veteran's bilateral lower extremity radiculopathy was manifested by symptoms such as moderate to severe constant pain, hypoactive deep tendon reflexes, and decreased sensation to light touch. The examiner determined that the functional impact of the lumbar spine disorder and radiculopathy was due primarily to pain and the inability to perform simple everyday tasks due to such pain. The pain interfered with sitting, standing, walking, riding in an automobile, and lifting more than 10 lbs. The Veteran used a cane or crutches to help stabilize his otherwise unsteady gait and occasionally fell when his foot dragged. The examiner concluded that the Veteran was unable to work with this level of dysfunctionality and degree of pain. In August 2021, the Director of Compensation Service concluded that the evidence failed to support the contention that any of the Veteran's service-connected disorders or a combination of the effects of the disorders prevented gainful employment prior to January 24, 2020. Resolving all doubt in favor of the Veteran, the Board finds that the service-connected disorders rendered him unable to maintain substantially gainful employment consistent with his education and occupational background prior to January 24, 2020. The Veteran's only work experience was as a truck driver and he has no other training, education, or skills. The evidence of record shows that his lumbar spine disorder and associated radiculopathy prevented him from fulfilling the physical demands of a truck driver. As a truck driver, the Veteran would be expected to sit for prolonged periods and sitting or riding for prolonged periods aggravated his lumbar spine pain. In addition to driving, the Veteran's duties as a truck driver involved lifting and arranging heavy merchandise, which the Veteran would be unable to complete due to the severity of his lumbar spine disorder and radiculopathy. Moreover, the Veteran does not have the education or training to work in a sedentary work environment. As discussed above, he completed high school and a commercial driver's license course. Therefore, his background makes it highly unlikely that he could obtain sedentary employment. In sum, the Board is satisfied that the service-connected disabilities have been so severe as to render the Veteran unable to maintain any form of substantially gainful employment consistent with his education and occupational background for the period prior to January 24, 2020. Accordingly, a TDIU is warranted. REASONS FOR REMAND 1. The claim of entitlement to a higher initial disability rating for sciatic nerve radiculopathy of the right lower extremity, rated as 10 percent prior to January 24, 2020, and 20 percent disabling thereafter, is remanded. Please see discussion in paragraph 4. 2. The claim of entitlement to a higher initial disability rating for sciatic nerve radiculopathy of the left lower extremity, rated as 10 percent disabling prior to January 24, 2020, and 20 percent disabling thereafter, is remanded. Please see discussion in paragraph 4. 3. The claim of entitlement to a higher initial disability rating for femoral nerve radiculopathy of the right lower extremity, rated as 10 percent disabling from June 5, 2021, is remanded. Please see discussion in paragraph 4. 4. The claim of entitlement to a higher initial disability rating for femoral nerve radiculopathy of the left lower extremity, rated as 10 percent disabling from June 5, 2021, is remanded. A March 2009 VA medication management note showed that the Veteran was prescribed Gabapentin for his radiculopathy in December 2008. The June 2009 VA examination report noted periodic radiation of pain to both lower extremities up to the toes. The examiner noted that there was no sensory, motor, or autonomic dysfunction. It was determined that there was no neurologic deficit noted in the dermatomal segment from L1 to S3. At the September 2012 Board hearing, the Veteran reported constant bilateral lower extremity pain. A September 2012 VA primary care noted included an impression of lower back pain with radiculopathy. A March 2013 preoperative note showed that the Veteran had severe back and leg pain with radiation of pain into his groin. He stated that his legs felt heavy and he used a cane to ambulate. His symptoms were present for greater than 5 years. The assessment was neurogenic claudication. In April 2013, the Veteran underwent an L3-4 laminectomy and fusion procedure. The admission note stated that his preoperative diagnosis was lumbar radiculopathy. An October 2013 neurosurgery clinic note indicated that the Veteran's lower extremity symptoms resolved, and he was now able to ambulate 2 miles per day. An April 2015 VA treatment record noted chronic low back pain and neuropathy in the legs due to degenerative disc disease. An April 2015 VA examination showed left lower extremity radiculopathy with involvement of the sciatic nerve. The June 2018 VA examination report documented right lower extremity radiculopathy with involvement of the sciatic nerve. The left lower extremity was not affected. The January 2020 VA examination report noted mild to moderate bilateral lower extremity radiculopathy with involvement of the sciatic nerve. The March 2021 VA examination report indicated that the Veteran's lower extremity radiculopathy involved the sciatic nerve, common peroneal nerve, superficial peroneal nerve, deep peroneal nerve, internal popliteal nerve, and posterior tibial nerve. The examination report did not show involvement of the femoral nerve. A June 2021 VA back examination showed that his radiculopathy involved the sciatic and femoral nerves. In a June 2021 VA medical opinion, the examiner concluded that the Veteran's April 2013 surgery led to the development of his lower extremity radiculopathy. In a July 2021 VA medical opinion, the reviewing examiner stated that the femoral nerve radiculopathy was present since March 2021. As discussed above, the increased initial ratings for bilateral lower extremity radiculopathy are part and parcel of the Veteran's claim for an increased rating for his lumbar spine disorder. The period on appeal dates back to March 31, 2009. The AOJ assigned an effective date of September 27, 2012, for the sciatic nerve radiculopathy and June 5, 2021, for the femoral nerve radiculopathy. As the period on appeal dates back to March 31, 2009, and the evidence suggests that the Veteran's radiculopathy manifested prior to the currently assigned effective dates, the Board finds a remand is required to determine the onset and severity of the Veteran's bilateral lower extremity radiculopathy involving the sciatic and femoral nerves throughout the entire period on appeal. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If the AOJ deems the records do not exist or that any additional attempts to obtain these records would be futile, the record should be annotated to reflect such and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected bilateral lower extremity radiculopathy of the sciatic and femoral nerves. All pertinent evidence of record should be made available to and reviewed by the examiner. All necessary studies should be performed. The examiner must provide all information required for rating purposes. The examiner must provide an opinion as to the onset and severity of the Veteran's bilateral lower extremity radiculopathy, to include the nerves involved throughout the entire period on appeal from March 31, 2009. 3. Then, the AOJ should readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.