Citation Nr: 21071925 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-05 251 DATE: December 1, 2021 ORDER Entitlement to a rating higher than 40 percent prior to March 1, 2021 is denied, however a 40 percent rating, but no higher, thereafter, for lumbosacral strain degenerative disc disease (DDD) and disc protrusion (IVDS) (back disability) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his back disability manifested with forward flexion of the thoracolumbar spine to 30 degrees or less after repeated use over time and during flare-ups. 2. Unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes with physician ordered bedrest was not present during the appeal period. 3. The Veteran's service-connected disabilities alone preclude substantially gainful employment. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for 40 percent rating, and no higher, for lumbar DDD and IVDS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5242, 5243. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1985 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) from November 2013 and May 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A May 2021 Board decision remanded these matters for further development. That development is complete in substantial compliance with remand directives. Procedural History By way of history, in February 2007, the Veteran filed a claim to increase his then 10 percent rating. A July 2007 rating decision continued his 10 percent rating. In February 2008, the Veteran informed VA that his lumbar DDD and IVDS was worse. A May 2008 rating decision increased his evaluation to 40 percent effective February 28, 2008. In January 2013, he filed a claim for an increased rating of higher than 40 percent. A November 2013 rating decision denied an increase. A June 2015 rating decision implemented a rating reduction to 10 percent effective October 1, 2015. This rating reduction was later found to be void and the Board remanded for a new VA examination. See September 2018 Board Decision, pg. 4. A new examination was conducted in August 2019. Based on the findings of that examination, a July 2020 rating decision proposed a rating reduction to 20 percent. In August 2020, the Veteran notified VA of additional evidence regarding his lumbar DDD and IVDS. A December 2020 rating decision reduced the rating from 40 to 20 percent effective March 1, 2021. A May 2021 Board decision remanded the matter for further development to obtain outstanding medical evidence to support the Veteran's claim for an increased rating of his lumbar DDD and IVDS. In a May 2021 correspondence, the Agency of Original Jurisdiction (AOJ) requested the Veteran complete a VA Form 21-4192 for employment information. In July 2021, the AOJ requested the Veteran provide or identify pertinent private medical records and sign releases to obtain those records within 30 days. See Subsequent Development Letter, dated July 12, 2020. On August 14, 2021, a Supplemental Statement of the Case (SSOC) denied an increased rating higher than 20 percent and entitlement to TDIU, based on the evidence and in part because the Veteran had not returned the requested forms. The Veteran indicating disagreement with the SSOC. See October 2021 Appellate Brief, pgs. 3, 5 (arguing the Veteran is entitled to a rating higher than 20 percent, and that the AOJ did not allow adequate time to provide medical records when considering delays in processing forms due to COVID-19). Therefore, the appeal period is from the date he filed his January 29, 2013 increased rating claim to the present, plus the one-year look-back period if applicable. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The issue then is whether the Veteran is entitled to a rating higher than 40 percent for the period prior to March 1, 2021, and an increased rating higher than 20 percent thereafter. 1. Increased rating higher than 40 percent prior to March 1, 2021, and increased rating higher than 20 percent thereafter for lumbar DDD IVDS The Veteran contends that his lumbar DDD and IVDS is more disabling than his 40 percent rating prior to March 1, 2021, and more than a 20 percent rating thereafter. See October 2021 Appellate Brief; see also January 2013 VA Form 21-526b. For the reasons below, the Board finds that a 40 percent rating, but no higher, is warranted for the lumbar DDD and IVDS for the entire appeal period. Increased Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Evaluation of a service-connected disability requires a review of a Veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Rating spinal disabilities The Veteran's lumbar DDD and IVDS has been evaluated under DC 5242 for DDD, DC 5243 for IVDS. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether it radiates), stiffness, and aching in the area affected by residuals of injury or disease. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Even so, when background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (finding the guidance of § 4.40 is intended to be used to understand the nature of a disability, "after which a rating is determined based on the § 4.71a criteria."). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined ROM of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. See id. at Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. Normal ROM for each component of spinal motion provided is the maximum that can be used for calculation of combined range-of-motion. See id. at Note 2; see also Plate V. In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the ROM of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal ROM stated in Note (2). See id. at Note 3. Provided that the examiner supplies an explanation, the examiner's assessment that the ROM is normal for that individual will be accepted. Note 4 instructs to round each ROM measurement to the nearest five degrees. Unfavorable ankylosis is defined as a condition in which 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; or neurologic symptoms due to nerve root stretching. Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. IVDS (preoperatively or postoperatively) may be evaluated 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. See 38 C.F.R. § 4.25 (combined ratings table). DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Id. at Note 1. Revised Rating Criteria Effective February 7, 2021, the Schedule of Ratings for the Musculoskeletal System was revised. Pertinent to this case, DC 5242 was modified from "degenerative arthritis of the spine" to "degenerative arthritis, [DDD] other than intervertebral disc syndrome (also, see either DC 5003 or 5010)." In addition, DC 5243 (IVDS) was revised to specify that that diagnostic code was to be assigned only when there was disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 was to be used for all other disc diagnoses. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5242, 5243). VA 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 after 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 old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria which is more favorable will be used from the date of the change in rating criteria. Here, a rating decision occurred prior to the revision, and a rating went into effect after the revision. Although he has disc protrusion and/or irritation of the adjacent nerve root, he has not been prescribed bedrest by a physician to qualify as incapacitating episodes, making the revised criteria less favorable. Thus, the Board will use the old criteria as it is more favorable to the claim. Application Turning to the evidence, a March 2008 VA examination noted symptoms of pain, fatigue, less motion, stiffness, spasm, weakness, flares of moderate intensity lasting hours and occurring weekly, with pain alleviated by pain medication and rest. The examiner noted that the Veteran had been prescribed and been regularly using hydrocodone (Vicodin), methocarbamol and etodolac for his back pain. The examiner noted left thoracic sacrospinalis spasm, guarding, pain with motion, with tenderness and weakness on the left. Spasms did not result in abnormal gait or abnormal spinal contour. The examiner noted lumbar scoliosis convexity to the left; the left shoulder was higher. There was lumbar flattening and a left-sided motor impairment, 4/5. There was left sided sensory impairment in vibration, pinprick, and light touch. Bilateral ankle and knee reflexes were hypoactive. ROM was as follows: forward flexion 20 degrees with pain throughout movement; extension 10 degrees with pain throughout; bilateral lateral flexion 10 degrees with pain throughout; rotation 10 degrees with pain throughout. The examiner noted that there was pain on passive ROM, active ROM and after repetitive use and noted when pain begins and ends with ROM. No additional limitation of motion with repeated movements. However, the examiner noted that flare-ups resulted in a loss of motion in any direction from 10 to 20 degrees. The examiner noted flare-ups caused problems with lifting, carrying and decreased strength, lower extremity pain affecting occupational activities. The examiner noted the Veteran was unable to walk more than a few yards. A Magnetic Resonance Imaging (MRI) study showed degenerative disc disease Lumbar Vertebrae No. 4 (L4) through Sacral Vertebrae No. 1 (S1) with a disc bulge, disc protrusion. No bed rest had been ordered; no ankylosis was noted. A September 2013 VA examination noted the Veteran reported taking 2 oxycodone just to get moving in the morning overcoming his back pain. The examiner noted the Veteran reported constant pain which may be excruciating at times. The examiner noted the Veteran reported his symptoms had not improved and that during flares he is unable to get up off the couch spending most of his day on the couch. The examiner noted pain on palpation, pain with movement, pain causing less movement than normal, interference with sitting and standing. Initial ROM was noted as forward flexion to 60 degrees with pain at 60; extension to 20 degrees with pain at 20; bilateral lateral flexion 20 degrees with pain at 20; bilateral rotation at 20 degrees with pain at 20. The examiner recorded ROM after repeated use to be identical to initial ROM. It is unclear at what point the pain begins or ends during ROM after repetitive use. The examiner did not provide an estimate of ROM during flares. Weight-bearing and non-weight bearing, as well as passive and active ROM testing results was not provided. Decreased sensation was noted at L5 through S1. The examiner recorded a straight leg test as negative. No bed rest was prescribed; ankylosis was not present. A January 2015 VA examination noted the Veteran reported that he cannot stand, sit, or walk for long periods of time due to low back pain which also radiates to his lower extremity. The Veteran was noted to be on oxycontin pain medication constantly. The examiner stated the Veteran denied that flares impact the function of his back. ROM was recorded as follows: forward flexion to 60 degrees; extension to 20 degrees; bilateral lateral flexion 20 degrees; bilateral rotation at 20 degrees. The examiner noted that pain causes a functional loss; pain was noted in all planes of ROM. The examiner stated the Veteran did not have an additional loss of ROM with repeated use testing but did have a functional loss after repetitive use. The examiner stated that weakness, fatigability, or incoordination significantly limit functional ability with repeated use but did not provide an estimate of the additional loss in ROM due to flares. Muscle spasm and guarding was present. Ankylosis was not present; physician ordered bedrest was not prescribed. An August 2019 VA examination noted the Veteran's lumbar DDD and IVDS had been progressively worse and he was experiencing chronic low back pain. The examiner noted that the Veteran was currently being followed by a VA pain management program. The examiner noted that pain caused a decreased ROM and continuous back brace use. The examiner noted that the Veteran was taking Oxycodone extended release 20 mg three times per day and reported daily flare-ups with pain of 8 out of 10 in intensity which last for 20 to 30 minutes each. The Veteran reported he can no longer put on his own shoes, needs assistance getting dressed and cannot bend over. Limited ROM caused him to be unable to bend fully and was unable to perform a straight leg raise test. Initial ROM was noted as follows: forward flexion to 50 degrees; extension to 10 degrees; bilateral lateral flexion 20 degrees; bilateral rotation at 20 degrees. The examiner noted that pain caused the additional functional loss at forward flexion, extension, and bilateral lateral flexion. Pain was reported as 2 of 10; loss of motion was noted to be consistent with his DDD. The examiner noted that the Veteran was able to perform repetitive use testing, without further loss of ROM. Pain significantly limited functional ability with repeated use over time which would limit ROM to forward flexion to 45 degrees; extension to 5 degrees; bilateral lateral flexion to 15 degrees; bilateral rotation at 15. Guarding or spasm did not result in abnormal gait or contour. Flexion and extension muscles were weaker at 4/5 in strength, with hypoactive reflexes bilaterally. The examiner stated that the Veteran does not have IVDS. No ankylosis was noted; physician ordered bedrest was not prescribed. The Board notes that the August 2019 examination stated the Veteran does not have IVDS, which is inconsistent with prior VA examinations. The August 2019 examination appears internally inconsistent stating no additional loss of ROM after repeated use, but noting repeated use limited flexion to 45 degrees, extension to 5 degrees, and bilateral flexion to 15 degreesa combined ROM of 80 degrees. Further, although noting progressively worsening symptoms and use of narcotic pain medication in progressively higher doses, the examiner did not address the ameliorative effects of narcotics while assessing ROM after repeated use or flares. As the 2019 VA examination is inadequate to rate the severity of the Veteran's lumbar spine disability, the Board finds all reasonable doubt in the Veteran's favor and awards a 40 percent rating, but no higher, for his lumbar spine disability for the entire appeal period. The March 2008 VA examination noted forward flexion of the lumbar spine limited to 20 degrees, and a combined ROM of 80 degrees with painful motion. Subsequent examinations did not provide an estimated ROM during flares. As the Veteran reported similar lumbar spine symptoms after March 2019, with a limited ROM of 80 degrees, and frequent flares, the Board finds a rating of 40 percent, but no higher, for the entire period on appeal is warranted. The Board reviewed the one-year look back period and notes that it does not support a rating higher than 40 percent because unfavorable ankylosis of the entire thoracolumbar spine was not present, nor was bedrest prescribed. The Board finds that a rating higher than 40 percent is not warranted during the period on appeal because no unfavorable ankylosis of the entire thoracolumbar spine has been notednor has the Veteran so contended, and no exacerbating episodes with doctor prescribed bed rest under the criteria for IVDS. See 38 C.F.R. § 4.71a. Increased ratings for radiculopathy The Court of Appeals for Veterans Claims (Court) has recently held in Chavis v. McDonough, that an increased rating spine claim could include neurological ratings as part and parcel of determining the rating on appeal. See Chavis, U.S. Court of Appeals for Vet. Claims No. 18-2928 (decided April 16, 2021). The Court held that if the issue of entitlement to an increased rating for radiculopathy is determined to be within the scope of the claim for an increased rating for a spinal disability on appeal, the Board has jurisdiction to address the ratings for associated radiculopathy without requiring a separate notice of disagreement. VA provides ratings for lower extremity radiculopathy, neuritis of the sciatic nerve, under 38 C.F.R. § 4.124a, DC 8620. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. See id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. The terms "mild," "moderate" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 Neuritis, which is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is rated on the scale provided for injury of the nerve involved. The maximum rating for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Application In this case, the Veteran has an increased rating claim for lumbar DDD IVDS and is currently rated for right and left lower extremity radiculopathy at 20 percent. A March 2008 examiner noted paresthesias of the left lower extremity due to lumbar DDD and IVDS. A September 2013 VA examiner noted right lower extremity paresthesia and weakness was due to DDD and IVDS. Therefore, the Board will review whether increased ratings are warranted for lower extremity radiculopathy. In his November 2014 letter, the Veteran did not indicate he had radicular pain or other signs or symptoms due to radiculopathy. A January 2015 examination noted weakness in the right ankle dorsiflexion and plantar flexion, hypoactive reflexes in the right lower extremity, and decreased sensation in both feet, a positive straight leg raise test and mild to moderate paresthesias bilaterally. An August 2019 DBQ reflects evidence of bilateral radiculopathy of the lower extremities. The examiner noted intermittently moderate pain, and mild paresthesia involving the L5-S1 nerve roots. The examiner reported hypoactive reflexes bilaterally. The Veteran was unable to perform the straight leg test. The DBQ reflected that the Veteran's left and right lower extremity radiculopathy was mild to moderate in intensity, with involvement of the right- and left-side sciatic nerves. A January 2015 examination reflects radiculopathy symptomatology of moderate, constant pain, and mild paresthesias and/or dysesthesias, and moderate numbness of the right and left lower extremities with no muscle atrophy, and normal muscle strength. The November 2019 examiner reported symptoms he described primarily as mild or moderate. Thus, even considering hypoactive reflexes and positive straight leg raise test, the predominant nature of his bilateral lower extremity radiculopathy does not more nearly approximate at least moderately severe incomplete paralysis. Based on the evidence of record, the Board finds that the Veteran's right and left lower extremity radiculopathy symptomatology does not more nearly approximate at least moderately severe incomplete paralysis of the sciatic nerve to warrant a disability rating higher than 20 percent. In sum, the most beneficial rating for his lumbar DDD IVDS is 40 percent, and no higher, prior to March 1, 2021 and thereafter, with a separate award of no higher than 20 percent for right and left lower extremity radiculopathy. Again, the Veteran did not have exacerbating episodes with doctor prescribed bed rest for his lumbar DDD IVDS to warrant a higher rating. 2. Entitlement to TDIU The Veteran filed a claim for TDIU in December 2013, albeit on the wrong form. See December 2013 VA Form 21-526EZ. The Veteran contends he is entitled to TDIU because he is unable to work due to his service-connected back and knee disabilities. See June and November 2014 Correspondence; see also November 2014 VA Form 21-8940. An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether service-connected disabilities alone are of sufficient severity to render him or her unable to secure or follow a substantially gainful occupation. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU can be assigned if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, without regard to age or impairment due to nonservice-connected disabilities, provided one service-connected disability is rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and a combined rating at 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must consider a Veteran's education, training, and work history. See Pedersen v. McDonald, 27 Vet. App. 276 (2015). The Veteran's combined evaluation for compensation has been at least 70 percent since January 2013. Currently, he is service connected for radiculopathy of the right and left lower extremities at 20 percent disabling; lumbar DDD and IVDS at 40 percent disabling; trichophyton rubrum of the arms and legs (skin disorder) at 10 percent disabling; and bilateral knee DDD at 20 percent disabling. each. Thus, he meets the criteria for schedular TDIU. Therefore, the central inquiry is whether his service-connected disabilities alone cause unemployability. In determining TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Marginal employment shall not be considered substantially gainful employment, and generally shall be 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. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as ability to perform physical and mental activities required by an occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In this case, the evidence shows that the Veteran was trained as a combat engineer. See DD 214. The Veteran states his service-connected back and knee disabilities were so severe that in February 2011, he was unable to remain in his position although he transferred to less physically demanding work. Further, he stated his service-connected conditions have worsened such that he is unable to work at any job. The evidence shows he last worked intermittently from February 2011 to November 2014 at Allstar Dodge earning, at most, $1,200 in one month; he indicated an effort to obtain other employment. See November 2014 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim Form). This indicates he does not receive income from employment exceeding the federal poverty threshold in accord with the economic component of entitlement to TDIU. The record does not contain another TDIU Claim Form. However, the Board can piece together from the record the fact that the Veteran worked as a sales manager for eight years, from 1990 to 1998, and as a prison guard at a federal prison from 1998 to 2011. He has not worked since 2014 because of, at least in part, his service-connected disabilities. See, e.g., VA examinations dated September 2013, January 2015, August 2019; June 2014 Correspondence; VA Treatment Records. In August 2019, the Veteran was provided a TDIU examination. The examiner opined that the Veteran is unable to perform sedentary work. The examiner noted that the Veteran was unable to put on his own shoes, bend over or lift any object. The VA examiner opined that the Veteran's back disability impacts his ability to work in that he is unable to stand or sit for any length of time and is unable to lift any objects. The examiner did not note that his skin disorder impacts his ability to work, nor has the Veteran so contended. The examiner opined that even if he were able to perform sedentary work, he would require frequent breaks due to back pain while sitting. The examiner concluded his diagnoses working in conjunction create a significant functional loss limiting his ability to sit, stand or walk for any length of time with no ability to lift any object. As to the Veteran's being able to work performing jobs that require sedentary or non-sedentary employment, including past employment and other possible employment that could make use of his work experience and education, the Board finds that the medical records show that problems caused by his service-connected lumbar DDD IVDS, bilateral knee DDD, and lower extremity radiculopathy adversely impact his ability to work in any field because of the overall impairment they have to his body to include the stamina needed to work a full-day, also noting the amount of pain medication and ability to concentrate on tasks of employment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that a determination of whether a Veteran is unable to secure or follow a substantially gainful employment due to service-connected disabilities is a factual rather than a medical question and is an adjudicative determination properly made by the Board or RO). The Board finds that his service-connected disabilities prevent him from securing or following "substantially gainful" employment given his prior vocational history, work experience, his lumbar DDD IVDS, bilateral knee DDD, radiculopathy have on obtaining and maintaining substantially gainful sedentary or non-sedentary employment, including past employment in sales, and at a prison, because of the problems they would cause in any work environment. Therefore, the most probative evidence of record shows that the Veteran's service-connected disabilities render him incapable of substantially gainful employment given his prior vocational history, work experience, and the impact his service-connected disabilities have on all employment. The claim for a TDIU is granted. The Board will not assign an effective date for the award of TDIU and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating"). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.