Citation Nr: 21072619 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 13-29 810 DATE: December 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine, residuals of fracture L-4, prior to September 27, 2011 is denied. Entitlement to a rating of 40 percent for degenerative disc disease of the lumbar spine, residuals of fracture L-4, status post laminectomy from January 1, 2012 to July 5, 2012 is granted. Entitlement to a rating of 20 percent for degenerative disc disease of the lumbar spine, residuals of fracture L-4, status post laminectomy prior from July 5, 2012 to February 8, 2013 is granted. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine, residuals of fracture L-4, status post laminectomy from February 8, 2013 to August 8, 2021 is denied. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine, residuals of fracture L-4, status post laminectomy from August 8, 2021 is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 27, 2011, the Veteran's low back disorder was manifested by forward flexion no worse than 70 degrees, extension no worse than 15 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees, pain, lack of endurance, and limitation of motion; favorable or unfavorable ankylosis of the thoracolumbar spine was not shown. 2. From January 1, 2012 to July 5, 2012, the Veteran's low back disorder was manifested by forward flexion of the thoracolumbar spine 30 degrees or less. 3. From July 5, 2012 to February 8, 2013, the Veteran's low back disorder was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 4. From February 8, 2013 to August 8, 2021, the Veteran's low back disorder was manifested by forward flexion no worse than 70 degrees, extension no worse than 15 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees, pain, lack of endurance, and limitation of motion; favorable or unfavorable ankylosis of the thoracolumbar spine was not shown. 5. From August 8, 2021, the Veteran's low back disorder was manifested by forward flexion of the thoracolumbar spine 30 degrees or less. CONCLUSIONS OF LAW 1. Prior to September 27, 2011, the criteria for a disability rating in excess of 10 percent for low back strain are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). 2. From January 1, 2012 to July 5, 2012, the criteria for a disability rating of 40 percent for low back strain are met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). 3. From July 5, 2012 to February 8, 2013, the criteria for a disability rating of 20 percent for low back strain are met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). 4. From February 8, 2013 to August 8, 2021, the criteria for a disability rating in excess of 10 percent for low back strain are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). 5. From August 8, 2021, the criteria for a disability rating in excess of 40 percent for low back strain are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1990 to November 1990 and from April 2002 to April 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In the decision, the RO granted the Veteran's June 2003 claim of entitlement to service connection for lumbar spine disability. He has appealed the initial rating assigned for the disorder. In November 2019, the Veteran testified at a travel hearing before the Board. A transcript of the hearing has been included in the electronic claims file and has been reviewed. In July 2020, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Increased Rating Back The Veteran contends he is entitled to an increased rating for his back condition. The Veteran's back condition is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 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. 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 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 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. 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. Id. at Note 1. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Prior to January 1, 2012 Medical records prior to January 1, 2012 note a 2008 diagnosis of chronic anterior wedge compression deformities at L1, L2, and L4 vertebral bodies and mild marginal endplate spondylosis. See Medical Treatment Records. In 2009, the Veteran had a consultation where the clinician recommended physical therapy and informed the Veteran of the probability of back surgery in the foreseeable future. See Medical Treatment Records. The Veteran was afforded a VA examination in June 2009. See June 2009 VA Examination. At the examination, the Veteran presented with a range of motion measured at 70 degrees flexion, left and right lateral flexion at 15 degrees, left and right lateral rotation at 15 degrees. The examiner noted that there was no change to the Veteran's range of motion with repetitive motion testing but noted that his range was limited by pain in the final 5 degrees of motion. Repetitive range of motion testing did not demonstrate further pain, weakness or incoordination or lack of endurance. The Veteran shared that his baseline pain was 4/10 with flares to a 10/10 twice a week with increased activity; however, range of motion for flare-ups was not performed or estimated. For the period prior to January 1, 2012, the Veteran's symptoms are manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees with pain. The Board finds that these symptoms most closely approximate the criteria contemplated by a 10 percent rating. A rating in excess of 10 percent is not warranted as the medical evidence does not establish any of the following for this period: forward flexion of the thoracolumbar spine 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, which is required for an increased rating. January 1, 2012 to July 5, 2012 At an occupational therapy appointment in March 2012, the Veteran presented with an average of 15 degrees of forward flexion and 8 degrees of lumbar extension. The occupational therapist indicated that the Veteran required rest breaks in between testing and that he noted a pain at a level of 8 out of 10 and left leg fatigue at .35 miles on the treadmill test. See CAPRI Records. The clinician noted that the Veteran's low back pain may make travel and his social life more difficult, it may also cause him to be off work. The occupational therapist indicated that the Veteran would not be able to perform at his previous level of work safely, given that his previous job required repetitive lifting, bending, twisting, and the use of the forklift. For the period from January 1, 2012 to July 5, 2012, the Veteran's symptoms are manifested by a forward flexion of the thoracolumbar spine to 30 degrees or less, pain, and fatigue. The Board finds that these symptoms most closely approximate the criteria contemplated by a 40 percent rating. A rating in excess of 40 percent is not warranted as the medical evidence does not establish unfavorable ankylosis of the entire thoracolumbar spine., which is part of the criteria required for the 50 percent rating. July 5, 2012 to February 8, 2013 At an occupational therapy appointment on July 5, 2012, the Veteran's flexion measured at 48 degrees, extension at 12 degrees, right lateral flexion at 15 degrees, left lateral flexion at 18 degrees, right rotation at 35 degrees, and left rotation at 35 degrees. See July 2012 CAPRI Records. In December 2012, at an occupational therapy functional capacity evaluation the clinician noted the Veteran had a 51 degree flexion, 21 degrees of extension. See CAPRI Records. The clinician opined that the Veteran appeared fully capable of returning to his previous job and performing at the expected level, citing the Veteran's ability to lift 80 pounds from floor to shoulder and carry it for a distance. The Veteran walked on the treadmill for 30 minutes for a distance of .64 miles with no increase of pain. The evidence includes Social Security Administration (SSA) records. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims. Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Veteran was found not disabled due to his disorders of the back and obesity and other hyperalimentation on February 2, 2012. The SSA decision found the Veteran to be able to work, specifically citing the Veterans September 2012 residual capacity assessment where the Veteran could lift up to 70 pounds and noted that he was excited to return to work. For the period from July 5, 2012 to February 8, 2013 the Veteran's symptoms most closely approximate the criteria contemplated by a 20 percent rating. The Veteran's symptoms are manifested by a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A rating in excess of 30 percent is not warranted as the medical evidence does not establish forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. February 8, 2013 to August 8, 2021 The Veteran attended a VA examination in February 2013. See February 2013 VA Examination. At the time of the examination, the Veteran had a diagnosis of degenerative disc disease and degenerative joint disease of the lumbar spine in addition to spinal stenosis of L4 and L5. The Veteran's medical records indicated that he had a lumbar laminectomy in September 2011, which he indicated improved his pain and resolved his radiculopathy. The Veteran also shared that "it bothers me more if it goes to rain or change in temperature. The more physical activity I do, bending, twisting, lifting it is more likely to get painful." He expressed difficulty with bending, twisting, and lifting, noting that it becomes more painful the more activity he does. The Veteran reported flare-ups described as intolerably intense pain and weakness that occurred seven to eight times in the past nine months lasting one to two days, resulting in the inability to get out of bed without help, to walk without support or straighten his back. Range of motion testing revealed flexion to 90 or greater degrees with pain at 90 or greater degrees, extension to 5 degrees with pain at 5 degrees, right lateral flexion to 15 degrees with pain at 10 degrees, left lateral flexion to 15 degrees with pain at 15 degrees, and right lateral rotation to 30 or greater with no objective evidence of painful motion and left lateral rotation to 20 degrees with pain at 20 degrees. Repetitive use testing results in additional limitation of right lateral rotation to 25 degrees. The examiner reported functional loss due to less movement than normal, and pain on movement. The Veteran demonstrated localized tenderness or pain to palpation for joints of the thoracolumbar spine, specifically he demonstrated right to left spasm of lumbar paraspinal. He displayed guarding and muscle spasms that did not result in an abnormal gait and spinal contour. The Veteran demonstrated normal muscle strength, normal reflex, and no muscle atrophy. The examiner reported no radiculopathy symptoms and noted that the Veteran does not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The Veteran did not report the use of any assistive devices. The examiner found that arthritis was documented based on imaging studies performed on the Veteran's thoracolumbar spine, specifically there were post. Functionally, the examiner concluded that the Veteran's spine condition does not impact his ability to work. In April 2015, the Veteran had a physical therapy consult at which his flexion was measured at 71 degrees, extension at 30 degrees, right lateral flexion at 21 degrees, and left lateral flexion at 23 degrees, right rotation at 25 degrees, and left rotation at 26 degrees. The Veteran also described his low back pain as "numbness" and shooting pain into his left leg. See April 2015 CAPRI Records. In December 2016 the Veteran was afforded another VA examination. See December 2016 VA Examination. The examiner noted diagnoses of degenerative disc disease of the lumbar spine and radiculopathy. The Veteran reported that he began having radiculopathy down his legs six months after his September 2011 surgery. He noted that his symptoms have progressed, with his back having constant light pain which intensifies throughout the day. He also shared that he experiences intermittent radiculopathy pain down his legs, with left greater than the right. He also shared he experiences burning in the feet, tingling in both legs, and numbness in the left thigh. He reported flare-ups of the spine, sharing that he has "intense pain" and it causes "interference with lifting and locomotion." Range of motion testing revealed flexion to 90 degrees with pain, extension to 30 with pain, right and left lateral flexion to 30 degrees with pain, and right and left lateral rotation to 30 degrees with pain. There was no additional loss with repetitive use testing. The examiner reported functional loss due to pain and lack of endurance. The examiner noted additional limitations due to pain and lack of endurance during flare-ups and repeated use over time described as flexion to 70 degrees, extension to 15 degrees, and right and left lateral flexion to 15 degrees, and right and left lateral rotation to 30 degrees. The Veteran did not have guarding or muscle spasms resulting in abnormal gait but did present with localized tenderness. The examiner noted that the Veteran had less movement than normal, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran had normal muscle strength, no muscle atrophy, hypoactive right knee and ankle reflexes, and decreased left upper anterior thigh and left foot/toes. The Veteran also presented with moderate intermittent radiculopathy pain of the right and left lower extremity, mild numbness and paresthesias of the right lower extremity, and moderate numbness and paresthesias of the left lower extremity. The examiner found involvement of the L4/L5/S1/S2/S3 nerve roots of both legs. The examiner did not find ankylosis nor found that the Veteran had IVDS of the thoracolumbar spine. The examiner noted that the Veteran regularly utilized a brace for locomotion. The examiner noted that the Veteran used a cane for support with ambulation and stability. Functionally, the Range of motion testing revealed flexion to 90 degrees with pain, extension to 30 with pain, right and left lateral flexion to 30 degrees with pain, and right and left lateral rotation to 30 degrees with pain. The examiner noted that the Veteran was likely suffering from a nerve root compression. In June 2017, an addendum opinion was completed for clarification. See June 2017 VA Opinion. The examiner noted that no new imaging was indicated or performed in conjunction with the 2016 examination, which does not preclude consideration of the April 2015 and May 2015 x-rays. Additionally, there were conflicting reports regarding the Veteran's examination diagnosis of bilateral lower extremity neuropathy. The June 2017 examiner stated that "the 2015 MRI of record does show neuroforaminal impingement neuroanatomically consistent with the diagnosis." Additionally, the examiner clarified that the Veteran's medical records do not include doctor prescribed bedrest. On January 5, 2018, the Veteran had a physical therapy consultation at which the Veteran ambulated into the clinic without assistive devices, gait demonstrated increased lateral trunk sway but steady, posture demonstrated decreased lumbar lordosis, posterior pelvic tilt, grooming well-kept alert and oriented, and followed commands well. See CAPRI Records. The Veteran had flexion to 40 degrees, extension to 5, lateral flexion right to 10 and lateral flexion left to 10 and rotation 35 right and left rotation 25, all of which had pain. the Veteran had a left lumbar medial branch block procedure performed. In February 2018, the Veteran rated assessed his pain ranging from a 3to an 8 in the past week. The Veteran reported that the pain in his back interfered with his day-to-day activities quite a bit and somewhat interfered with his ability to work around the home and engage in social activities. In March 22, 2018, the Veteran reported feeling better with physical therapy intervention, noting that it seems to provide relief but in short-term. The physical therapy was recommended discharge with home exercise program. See CAPRI Records. In March 2019, the Veteran reported that his pain was a 7 out of 10 and that his back pain impacted his mobility and sleep quality. "The veteran reported 50% improvement in symptoms post-injection, following a pain-provoking maneuver." The Veteran demonstrated a sustained improvement, estimated between 70 and 80 percent. In November 2019, the Veteran testified at a Board hearing. See November 2019 Hearing Transcript. At his hearing, the Judge noted that the Veteran was visibly shifting throughout the hearing in pain. The Veteran testified that it takes him longer to do tasks such as cut and split wood, unload a trailer load of coal, and shower. He also indicated that he stands at his job all day on a concrete floor, which leads to unbearable pain after approximately three hours. He shared that he is presently building a schedule with a TENS unit which stimulates his back, giving him more motion and bringing his average pain of a 7 down to a 3 or 4. When making a decision, the Board must consider all the evidence of record, to include lay statements and assess their competency and credibility. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In weighing credibility, VA may consider internal inconsistency, facial plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board found the Veteran's testimony truthful and credible. While the Veteran shared that it takes longer to do tasks and experiences pain, unfortunately, his descriptions did not include range of motion. He did not indicate where his limitations of forward flexion were nor did he indicate that he had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As such, while the Board finds the Veteran's testimony credible, the evidence does not provide the Board with the information to increase the Veteran's general rating based on DC 5237. For the period from February 8, 2013 to August 8, 2021 the Veteran's symptoms are manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees with pain. The Board finds that these symptoms most closely approximate the criteria contemplated by a 10 percent rating. A rating in excess of 10 percent is not warranted as the medical evidence does not establish any of the following for this period: forward flexion of the thoracolumbar spine 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, which is required for an increased rating. From August 8, 2021 The Veteran was afforded another VA examination in August 2021 and reported that he was experiencing progressively worse pain and numbness that also affected his legs. See August 2021 VA Examination. He noted that his flare-ups occur daily and are variable in severity. Sometimes they are not too bad and sometimes it forces him to sit down and relax. The Veteran noted that his flare-ups are precipitated by working, such as standing, lifting, sitting, climbing or driving. He shared that he drives 28.6 miles to work and it takes him a while for him to walk again after the drive. He shared that he has functional impairment as follows: spasticity. difficulty walking, difficulty bending, difficulty with stairs due to his left leg. He has fallen due to his leg not properly lifting and indicated that he is unable to sit straight. The Veteran has to lean back and his back condition interferes with his mobility, self care, and sleep quality. Range of motion testing revealed flexion to 25 degrees with pain, extension to 5 degrees with pain, right lateral flexion to 5 degrees with pain, left lateral flexion to 5 degrees with pain, right lateral rotation to 20 degrees with pain, and left lateral rotation to 15 degrees with pain. Passive range of motion testing revealed flexion to 35 degrees with pain, extension to 5 degrees with pain, right lateral flexion to 15 degrees with pain, left lateral flexion to 15 degrees with pain, right lateral rotation to 30 degrees with pain, and left lateral rotation to 20degrees with pain. The examiner noted that there was not objective evidence of crepitus or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Repetitive use testing results in additional limitation of right lateral rotation to 15 degrees with pain and left lateral rotation to 10 degrees with pain. The examiner opined that the Veteran's flare-ups led to functional loss due to pain and lack of endurance with a forward flexion of 15 degrees, extension endpoint of 5 degrees, right lateral flexion endpoint of 5 degrees, left lateral flexion endpoint of 5 degrees, right lateral rotation endpoint of 10 degrees, and left lateral rotation endpoint of 5 degrees. The Veteran did not have muscle spasms resulting in abnormal gait or spinal contour. The examiner reported that the patient has significantly decreased lumbar flexibility, walking abnormally with a posterior posture and a limp. He noted a disturbance of locomotion, interference with sitting, less movement than normal, and interference with standing. The Veteran had normal muscle strength on the right side and 4/5 on the left for hip flexion, knee extension, and ankle plantar flexion with no muscle atrophy. The Veteran presented with a normal right knee relaxes and a hypoactive left knee. The Veteran was found to have decreased lateral thigh sensation on the left lateral thigh. The Veteran experienced left lower extremity moderate numbness. The examiner also noted involvement of the sciatic nerve roots on the left side. The examiner noted that the Veterans medical records lack findings that support a diagnosis of ankylosis. The Veteran was not found to have IVDS of the thoracolumbar spine and did not report using any assistive devices for locomotion. The examiner opined that Pain impacts his ability to work making it difficult to lift reach, bend, stand, for prolonged periods or sit for prolonged periods of time longer than 45 minutes to 1 hour. The examiner found that the patient has severely limited spinal mobility in every direction, walked with a guarded gait, leaning back and limps. The examiner opined that the Veteran's condition with chronic pain decreased mobility, flexibility and weakness profoundly impacts the Veteran's ability to function at his employment; he is not able to bend to lift or carry heavy objects. The examiner found the examination is consistent with the Veteran's history that he must rest at frequent intervals and cannot sit for prolonged periods of time or stand for prolonged periods of time For the period from August 8, 2021, the Veteran's symptoms are manifested by a forward flexion of the thoracolumbar spine to 30 degrees or less, pain, and fatigue. The Board finds that these symptoms most closely approximate the criteria contemplated by a 40 percent rating. A rating in excess of 40 percent is not warranted as the medical evidence does not establish unfavorable ankylosis of the entire thoracolumbar spine., which is part of the criteria required for the 50 percent rating. REASONS FOR REMAND Entitlement to total disability rating due to unemployability (TDIU) is remanded. The Board finds that additional development is required in order to clarify the Veteran's work history and whether employment was marginal in nature. The Board's review shows that the record is ambiguous regarding the Veteran's work status and earnings. The Veteran filed his TDIU claim on June 1, 2012, on which he reported that he last worked full time in May 2011. At a VA Examination in September 2013, the examiner indicated that the Veteran's spine condition did not impact his or her ability work. At a December 2016 examination, the examiner found that the Veteran's back condition would makes it difficult for him to stand and walk for prolonged periods and that he has trouble lifting and carrying heavy objects. However, the examination does not indicate whether the Veteran was employed at the time of the examination. At the August 2021 examination and at the Veteran's Board hearing, he testified that he was employed as an explosive operator building rocket engines but that his condition limited his occupational functioning. The only Social Security records on file only include the Veteran's work history through January 2013. A determination regarding whether a Veteran is entitled to TDIU involves consideration of two components: an economic component involving an occupation outside of a protected environment earning more than marginal income, and a non-economic component involving the Veteran's ability to secure and follow such employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In this case, the Board finds that the record is ambiguous regarding the economic component, particularly whether the Veteran worked and whether any part-time work produced more than marginal income. Given the ambiguity in the record regarding the Veteran's work status and earnings, remand is required to clarify those matters. The Veteran should be contacted and requested to submit an updated work history. The Board notes that the record does not contain an updated Social Security earnings report. In order to clarify the Veteran's earnings, Social Security records regarding the Veteran's earnings history for the period from June 1, 2012 to present should be obtained. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he provide an update to his employment history. 2. Obtain information from SSA regarding earnings from June 1, 2012 to present. Document all requests for information as well as all responses in the claims file. 3. Conduct any other development suggested as a result of the above actions. 4. Readjudicate the TDIU claim. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.