Citation Nr: 21072000 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-33 446 DATE: December 2, 2021 ORDER Entitlement to a rating greater than 10 percent prior to September 9, 2020 for right and left lower extremity sciatica is denied. Entitlement to a rating greater than 20 percent after September 9, 2020 for left lower extremity sciatica is denied. Entitlement to an evaluation of 40 percent but no higher for right lower extremity sciatica after September 9, 2020 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to June 16, 2017 is denied, and referral for extraschedular TDIU is not warranted. REMANDED Entitlement to a rating greater than 10 percent prior to September 9, 2020 and to a rating greater than 20 percent thereafter for the lumbar spine disability is remanded. FINDINGS OF FACT 1. Prior to September 9, 2020, the Veteran's right and left lower extremity sciatica is not shown to have been productive of moderate incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. 2. After September 9, 2020, the Veteran's left lower extremity sciatica is not shown to have been productive of moderate incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. 3. After September 9, 2020, the Veteran's right lower extremity sciatica manifested with symptoms comparable to no more than moderately severe, incomplete paralysis of the sciatic nerve. 4. There is no reasonable possibility that the Veteran's service-connected disabilities precluded him from obtaining and maintaining gainful employment prior to June 16, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent for right and left lower extremity sciatica prior to September 9, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DCs 8520, 8620, and 8720. 2. The criteria for entitlement to an evaluation in excess of 10 percent for left lower extremity sciatica after September 9, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DCs 8520, 8620, and 8720. 3. The criteria for entitlement to an evaluation of 40 percent, but no higher, for right lower extremity sciatic after September 9, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DCs 8520, 8620, and 8720. 4. Prior to June 16, 2017, the criteria for a referral for extraschedular consideration of TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1998 to March 2007. These matters come before the Board of Veterans' Appeals (Board) from February and April 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). 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 (2017). 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 (2017). 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 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Therefore, the appellate period for evaluation of the right lower extremity neuropathy is April 7, 2012, one year prior to the date of the claim. When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Therefore, the start of the appellate period for the left lower extremity peripheral neuropathy is April 7, 2013 the date of the claim. Increased Rating 1. Entitlement to a rating greater than 10 percent prior to September 9, 2020 for right and left lower extremity sciatica is denied. Prior to September 9, 2020, the Veteran was evaluated at 10 percent for right lower extremity sciatica under DC 5252-8620 and then rated at 20 percent under DC 8520 thereafter. Prior to September 9, 2020, the Veteran was evaluated at 10 percent for left lower extremity sciatica under DC 8620 and then rated at 20 percent under DC 8520 thereafter. In the assignment of diagnostic codes, hyphenated numbers may be used. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. Here, Diagnostic Code 5252 sets forth the criteria for rating limitation of flexion of the thigh and Diagnostic Code 8620 sets forth the criteria for neuritis. Diagnostic Code 8620 is rated under the criteria for neuritis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8620. 38 C.F.R. § 4.123 states that neuritis is to be rated on the same scale as the identifying nerve, "with a maximum equal to severe incomplete paralysis." The rating criteria for paralysis of the sciatic nerve are located under 38 C.F.R. § 4.124a, DC 8520. Diagnostic Code 8520 provides that mild incomplete paralysis is rated as 10 percent and that moderate incomplete paralysis is rated as 20 percent. Moderately severe incomplete paralysis is rated as 40 percent, and severe incomplete paralysis with marked muscular atrophy is rated 60 percent. Complete paralysis is rated as 80 percent, and is manifested by the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened and (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under the provisions of 38 C.F.R. § 4.124a, 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 varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. The Veterans Benefits Administration (VBA) has determined that there are 5 separate nerve branches in the lower extremities that may be separately rated. M21-1, III.iv.4.G.4.c. According to VBA, the sciatic nerve (DCs 8520, 8620 and 8720), the external popliteal nerve (common peroneal) (DCs 8521, 8621 and 8721), the musculotaneous nerve (DCs 8522, 8622 and 8722), the anterior tibial nerve (deep peroneal) (DCs 8523, 8623, 8723), the internal popliteal nerve (tibial) (DCs 8524, 8624, and 8724), and the posterior tibial nerve (DCs 8525, 8625, and 8725) affect the foot and leg sensory and motor function of the buttock, leg, knee, muscles below knee, lower leg, fibula, foot, muscles of the sole of the feet, plantar flexion, and toes. Id. M21-1, Part III, Subpart iv, 4.G.4.c. Assigning separate ratings from within these nerve branches is not warranted as it would constitute impermissible pyramiding. M21-1, III.iv.4.G.4.d. In Overton v. Wilkie, 30 Vet. App. 257, 264 (2018), the Court of Appeals for Veterans Claims held that the Board is required to discuss any relevant provisions contained in the M21 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21 provision as a factor to support its decision. The Board notes that there is no binding authority on how to apply separate ratings for the various peripheral nerves in the lower extremities. In other words, there is no instruction on when different nerves can be assigned separate ratings without running afoul of the rule against pyramiding. This rule states that the evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. 38 C.F.R. § 4.14. When determining whether separate ratings are applicable, the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In this regard, the Board finds the M21 particularly insightful and instructive when determining whether separate ratings are warranted and for which nerves. The M21 shows that the lower extremities have five nerve branches, and each nerve branch affects different muscles/joints. Thus, to the extent a Veteran experiences neuropathy within the same nerve branch, the Board must be careful not to grant separate ratings where, although multiple nerves are involved, the same symptoms occur. In March 2013 VA medical records the Veteran reported occasional numbness, tingling, or burning sensation to the feet. The Veteran underwent a VA examination to evaluate his spine condition in January 2014. Radicular symptoms were observed in the bilateral lower extremities. The Veteran reported mild intermittent pain in the left and right lower extremities. No other neurological symptoms were observed. In April 2014 VA treatment records the Veteran complained of tingling in his right foot and baseline numbness in both feet. In November 2014 VA records the Veteran reported numbness in the bilateral feet with prolonged standing or sitting. In September 2017 records the Veteran denied any numbness or tingling. The Board finds that the totality of the evidence does not support granting a rating higher than 10 percent for right and left lower extremity sciatica prior to September 9, 2020. VA treatment records and VA examinations during this period on appeal, neurological findings have shown, at worst, mild severity. Furthermore, the January 2014 VA examination specifically noted the Veteran's mild severity of radiculopathy in the bilateral lower extremities. The Board finds that such findings more nearly approximate the criteria for an evaluation of 10 percent under DC 8620, and that the preponderance of the evidence is against an initial increased rating for this period on appeal. Thus, a rating in excess of 10 percent prior to September 9, 2020, for bilateral lower extremity sciatica is not applicable. 2. Entitlement to a rating greater than 20 percent after September 9, 2020 for left lower extremity sciatica is denied. 3. Entitlement to an evaluation of 40 percent but no higher for right lower extremity sciatica is granted. The Veteran was provided with another VA examination to evaluate his sciatica in October 2020. The examiner noted moderate constant pain in the right lower extremity and moderate intermittent pain in the left lower extremity. The Veteran also exhibited severe paresthesias or dysesthesias and severe numbness in the right lower extremity and mild numbness in the left lower extremity. Ankle plantar flexion and ankle dorsiflexion strength was 3/5 on the right side and 4/5 on the left side. Sensation was decreased in the right lower extremity. The Veteran exhibited moderately severe incomplete paralysis of the right lower extremity sciatic nerve and mild incomplete paralysis of the left lower extremity sciatic nerve. Moderate incomplete paralysis of the anterior tibial nerve on the right side was also noted. The Veteran underwent a final VA examination in April 2021. Mild constant pain, and moderate intermittent pain, and numbness were noted in the bilateral lower extremities. Muscle strength was 4/5 in the bilateral lower extremities. The sciatic nerve was noted as normal and there was no other paralysis observed. The Board finds that for the left lower extremity a rating in excess of 20 percent after September 9, 2020 is not warranted. At the most severe, the Veteran's disability was productive of mild incomplete paralysis of the left sciatic nerve and moderate intermittent pain. These disability pictures are fully contemplated in the criteria for the 20 percent ratings as assigned. Critically, the claims file contains no reports of moderately severe incomplete paralysis of the left lower extremity, as explicitly required in the criteria for 40 percent ratings. As per the Veteran's own lay testimony, his primary symptoms in the left lower extremity throughout the period on appeal were varying degrees of intermittent pain and mild numbness. In sum, the Veteran's disability picture is not so severe as to warrant higher ratings under the applicable DC for the left lower extremity after September 9, 2020. The Board does, however, find that with application of reasonable doubt, a rating of 40 percent, but no higher, is warranted after September 9, 2020 for right lower extremity sciatica. The VA examination reports by the nurse practitioner in October 2020 and April 2021 only indicated that he had moderately severe incomplete paralysis of the sciatic nerve and moderate incomplete paralysis of the anterior tibial nerve. There is objective symptomatology shown that more closely resembles a moderately severe incomplete paralysis. This includes the evidence of constant, moderate pain, severe paresthesias, and dysesthesias. Objectively there was evidence of decreased sensation, as well as diminished to absent reflexes noted in the October 2020 VA examination report. Functionally, his neuropathic symptoms were shown to impact his gait, requiring the occasional use of a cane, and limited his ability to walk or stand for more than a few minutes. Thus, affording the Veteran the benefit of the doubt, the Board finds that the evidence more closely resembles the criteria for a 40 percent rating for moderately severe right lower extremity peripheral neuropathy of the sciatic nerve. However, a rating in excess of 40 percent is not warranted at any point during the appeal period. Specifically, at no point during the appeal period does the evidence show that the Veteran's right lower extremity sciatica manifested with muscle atrophy, marked or otherwise, a finding necessary for a higher 60 percent rating. Further, the evidence does not show complete paralysis of the right lower extremity, a finding necessary for the maximum 80 percent rating. Thus, a higher rating is not warranted under DC 8520. The Board has considered whether separate or higher ratings are warranted under any other diagnostic code. The Board acknowledges that the October 2020 DBQ report showed moderate incomplete paralysis of the right anterior tibial nerve. The Board finds, however, that a separate rating is not warranted for this nerve. The sciatic and anterior tibial nerves are part of the sciatic nerve branch and assigning separate ratings from within the sciatic nerve branch would constitute impermissible pyramiding. Accordingly, the Board finds that a rating of 40 percent, but no higher, is warranted for right lower extremity sciatica after September 9, 2020. However, the Board finds that a rating in excess of 40 percent is not warranted for right lower extremity sciatica at any point during the appeal period. 38 C.F.R. § 4.124a , DC 8520. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to June 16, 2017 is denied and referral for extraschedular TDIU is not warranted. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; VanHoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. VanHoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the Court of Appeals for Veterans Claims (Court) recently issued a decision concerning TDIU. The Court noted that TDIU claims have two components that must both be met for a grant of TDIU, both economic and non-economic. As noted above, the economic consideration is a determination if the Veteran has earned annual income that does not exceed the poverty threshold for one person. The second component is determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue to include factors including but not limited to the Veteran's limitations concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue to include factors including but 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. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In another recent Court decision, it was determined that the "reasonable possibility" standard utilized in Ray v. Wilkie also applied when determining whether referral was warranted for extraschedular consideration of TDIU. Snider v. McDonough, No. 19-6707 (Fed. Cir. 2021). Therefore, the Board will adjudicate whether referral is warranted under this standard. Prior to June 16, 2017, the Veteran's service-connected disabilities are other specified trauma related disorder, rated at 30 percent from April 30, 2013; lumbar spine degenerative arthritis, rated at 10 percent from March 16, 2007; left lower extremity sciatic nerve radiculopathy at 10 percent from April 30, 2013; right lower extremity sciatic nerve radiculopathy at 10 percent from March 16, 2007; and history of kidney stone and right orchitis at zero percent from March 16, 2007. Prior to June 16, 2017, the Veteran's combined rating for his service-connected disabilities is 60 percent; thus, he does not meet the schedular requirement for that period. In cases where the schedular criteria are not met, an extraschedular rating is for consideration when there is a reasonable possibility that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§3.321, 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App.1 (2001). Rating boards will refer to the Director of the Compensation Service (Director) for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. §4.16 (a). As noted above, the Veteran's combined disability rating of 60 percent does not meet the schedular criteria for a TDIU per 38 C.F.R. § 4.16 (a). The Board finds a referral to the Director for extraschedular TDIU consideration is not warranted. The evidence of record reflects that the Veteran was employed full-time as a truck driver since 2016 and prior to that, his symptoms and functional impairments were not shown to be so severe that they precluded substantially gainfully employment. Addressing the economic component of TDIU, the probative lay and medical evidence establishes that the Veteran was unemployed from 2010 to 2016. In the Veteran's November 2020 application for increased compensation based on unemployability, the Veteran reported working for 70 hours a week as a truck driver for several years. A January 2014 VA examination indicated that the Veteran ceased working for a period after 2010 when he held a position at Wendy's. Addressing the noneconomic component of TDIU, the Veteran has a high school degree. The Veteran had experience as a manager at McDonalds and he indicated that he had training and education in truck driving. Turning to the evidence of record, in the Veteran's November 2020 application for increased compensation based on unemployability, the Veteran reported working for 70 hours a week as a truck driver until October 06, 2019. The application indicated that the Veteran had been fully employed as a truck driver since December 2016. A February 2021 request for employment information completed by the Veteran's former employer indicated that he was employed as a truck driver until June 2019 and noted that the reason for termination was that the Veteran indicated that he no longer needed the job. In a June 2017 VA examination it was noted that the Veteran was employed as a semi-truck driver since May 2016. The Veteran reported that he was doing well at work with his job duties and relationships and making good money. In a January 2014 VA examination it was noted that the Veteran was employed as a transportation manager for 7 months following service and then worked as a manager at McDonalds until the end of 2009. January 2011 VA treatment records indicated that he worked for Wendy's in 2010. He was unemployed from the end of 2010 to 2014, however there is no indication that this unemployment was due to his service-connected disabilities. The Veteran indicated that he left employment due to stress over long hours and a desire to spend more time with his family. He also stated that he could not drive because of back pain and seizures. The Board notes that the Veteran is not service connected for seizures and the evidence of record does not indicate that the Veteran's back condition was severe enough to preclude gainful employment. In a January 2014 VA examination to evaluate his psychiatric condition, the examiner found that the Veteran only suffered from occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The June 2017 examiner determined that the Veteran only suffered from occasional decrease in work efficiency due to his mental health condition. While the January 2014 examiner noted that the Veteran would have difficulty with daily lower back pain and standing for prolonged periods but did not determine that the Veteran would be precluded from gainful employment. Based on the evidence related to prior employment, education, and earnings provided by the Veteran, the record demonstrates that the Veteran was capable of maintaining substantially gainful employment for most of the appeal period under review. Additionally, his treatment records and VA examinations do not report severe symptoms for his service-connected disabilities. The evidence reflects that the Veteran was working in positions consistent with his education, training, and work experience. There is no indication that he was in a protected work environment or had marginal employment due to his service-connected disabilities. The Board finds that though the Veteran had a period of unemployment, the probative evidence does not reflect that the Veteran's service-connected disabilities combined or alone caused impairment of his mental or physical abilities to perform the type of work he was otherwise trained and qualified to perform. The Veteran's symptoms did not preclude substantially gainful employment. Thus, for the period prior to June 16, 2017, referral for a TDIU is not warranted. REASONS FOR REMAND 1. Entitlement to a rating greater than 10 percent prior to September 9, 2020 and to a rating greater than 20 percent thereafter for the lumbar spine disability is remanded. The Veteran seeks an increased evaluation for his service-connected lumbar strain. His disability is rated pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5237 and 5242. That Code provides for a rating under the General Rating Formula for Diseases and Injuries of the Spine. A note to the General Formula provides that "associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment" are to be rated separately under appropriate Diagnostic Codes. At his most recent VA examination, the Veteran denied bowel and bladder incontinence. The Veteran, however, reported bowel incontinence in conjunction with numbness and back pain in June and August 2017 VA treatment records. No finding was made as to whether these represented objective abnormalities that should be rated separately. On remand, the RO must determine whether the Veteran's complaints warrant a separate rating. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate examination to determine whether he currently suffers from any objective bowel or bladder impairment that is associated with his service-connected lumbar strain. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.