Citation Nr: 21074161 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-46 984 DATE: December 14, 2021 ORDER Entitlement to service connection for bilateral shoulder disability, to include as secondary to include service-connected back disability is denied. Entitlement to an initial rating in excess of 10 percent prior to October 8, 2013 for a back disability is denied. Entitlement to a rating in excess of 10 percent beginning January 1, 2014 to December 19, 2016 for a back disability is denied. Entitlement to a rating of 20 percent, but not higher, for the period of December 19, 2016 to January 9, 2020 for a back disability is granted. Entitlement to a rating in excess of 40 percent, beginning January 9, 2020 for a back disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from February 21, 2012 is granted. FINDINGS OF FACT 1. The Veteran's bilateral shoulder disability did not manifest during active service; arthritis did not manifest within one year of separation from active service, and there is no indication that a bilateral shoulder disability was causally related to his active service. 2. The Veteran's bilateral shoulder disability is not caused or aggravated by a service-connected disability. 3. Prior to October 8, 2013 and beginning January 1, 2014 to December 19, 2016, the Veteran's lumbar spine disability was not manifested by forward flexion limited to 60 degrees or less, combined range of motion of the thoracolumbar spine 120 degrees or less or guarding severe enough to result in abnormal gait or abnormal spinal contour. 4. From December 19, 2016 to January 9, 2020, the Veteran's lumbar spine disability has been manifested by forward flexion limited to, at worst, 60 degrees. 5. From January 9, 2020, the Veteran's lumbar spine disability has been manifested by forward flexion limited to, at worst, 30 degrees. 6. From February 21, 2012, the Veteran has a combined rating of at least 70 percent, with one disability rated 40 percent or higher, and his service-connected disabilities do prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral shoulder disability to include as secondary to service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310 (2020). 2. The criteria for entitlement to an initial rating in excess of 10 percent for a back disability prior to October 8, 2013 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a (2020); Diagnostic Codes (DCs) 5237-5243. 3. The criteria for entitlement to an initial rating in excess 10 percent for a back disability beginning January 1, 2014 to December 19, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a (2020); Diagnostic Codes (DCs) 5237-5243. 4. The criteria for a rating of 20 percent, but not higher, for a back disability have been met for the period from December 19, 2016 to January 9, 2020. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a (2020); Diagnostic Codes (DCs) 5237-5243. 5. The criteria for a rating in excess of 40 percent for a back disability have not been met beginning January 9, 2020. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a (2020); Diagnostic Codes (DCs) 5237-5243. 6. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met from February 21, 2012. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1980 to August 1984. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2013, December 2015, and April 2018 rating decisions issued by a Department of Veteran Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2018 and March 2021, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. In an April 2018 rating decision, the VA RO assigned a 20 percent rating for the Veteran's back disability, effective April 2, 2018. In a May 2020 rating decision, the VA RO assigned a 40 percent rating for the Veteran's back disability, effective January 9, 2020. Further, in an April 2021 rating decision VA RO granted entitlement to TDIU, effective March 2016. Those decisions do not constitute a complete grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). Service Connection- Bilateral Shoulders Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran contends his bilateral shoulder disabilities are due to active service. Further, the Veteran contends that his right and left shoulder disabilities are related to his service-connected low back disability. Specifically, the Veteran indicated that he improperly lifted, pulled, carried, and reached with his shoulders as a direct result of his low back disability while also simultaneously trying not to aggravate his back. The service treatment records are silent for any treatment, complaints, or diagnoses for any bilateral shoulder issues. The March 1980 enlistment examination and the May 1984 separation examination were negative for any shoulder issues. Further, the June 1983 examination reflected the Veteran's related denials of arthritis or rheumatism, bone, joint, or other deformity, and painful or "trick" shoulder or elbow . At a January 2003 VA Medical Center visit, the Veteran reported that he was having persistent pain in his left shoulder after a sledding accident. Further, in another visit to the VA Medical Center in February 2004, he reported falling down some steps while working at the warehouse. He believes his knee gave out in the fall. There was no report of a shoulder injury. Moreover, a March 2017 primary care note indicated that the Veteran's joint shoulder pain was aggravated by being on a computer. There were no limitations on motion or strength. During the October 2017 therapy consult, the Veteran reported that he had left shoulder pain for the last two years. He further reported that the left shoulder pain increased when washing his back. He felt a pop in his shoulder. The Veteran indicated that the shoulder pain was hit or miss. The October 2017 X-ray revealed that there was a slight progression of mild left shoulder osteoarthrosis. He was told that he should continue occupational therapy. Further, at the VA hospital, the Veteran was diagnosed with left shoulder impingement in November 2017. The Veteran was told to follow up in a couple of weeks. He declined a physical examination of his shoulder. At a March 2018 VA Medical Center consult, the examiner indicated that his main issues now are right shoulder pain and limited mobility which is consistent with rotator cuff tendonitis/bursitis. Further, an April 2018 right shoulder X-ray revealed minor degenerative changes suspected at the AC joint. Minor arthritis was in the right shoulder. At the January 2020 VA Medical Center, the Veteran stated that his left shoulder pain is from sleeping wrong. The X-rays show mild degenerative joint disease in the left shoulder. Later, March 2020 X-rays revealed that the Veteran had a partial rotator cuff tear in his left shoulder. The Veteran reported a two-month history of unprovoked left shoulder pain. As set forth above, the Veteran has a current shoulder disability as shown by the record, such that the first element of direct service connection is met. Next, the STRs were negative for any shoulder issues. The Veteran has alleged that his bilateral shoulder disabilities are related to service and secondarily connected to his service-connected lumbar spine disability. In affording the Veteran the benefit of the doubt, the second element of direct service connection has also been met. However, the Board has carefully considered the VA medical opinions and find that the VA medical opinions are highly probative in establishing that there is not a nexus between the Veteran's current disability and military service. At the February 2004 VA joints examination, the Veteran reported that he worked in a production warehouse. He operated a forklift taking materials on and off the shelves. He fell going down the steps. He believes his knee gave out in the fall. The Veteran lost his job. There were no shoulder injuries reported. At the July 2006 and October 2010 VA joint examinations, the Veteran did not report any shoulder injuries. The March 2021 VA examiner opined that the Veteran's left and right shoulder claimed conditions are less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there is no evidence in 1984 at his Womack Army Community Hospital examination of any shoulder pain. The multiple sources comment on bilateral shoulder pain coming from being on computers and radiation of pain from neck into shoulders. This is noted in 2009, 2010, and 2011. The examiner further stated that he was unable to find any specific shoulder injuries. His orthopedic note in 2020 indicates the patient reports two months of unprovoked left shoulder pain. The examiner was unable to find a nexus between the Veteran's current left shoulder rotator cuff tear and his mild AC osteoarthritis and right shoulder strain and any event, injury, or illness during active duty. Further, the March 2021 examiner opined that the left and right shoulder conditions are less likely than not proximately due to his service-connected lumbar spine disability. There is no biologic plausible correlation between his low back and his shoulders. The Veteran does state a fall down the stairs injuring his shoulders from his back. However, multiple sources indicate a fall from his knee condition in 2004 with no other injuries and then in 2012 physical therapy notes indicate LE giving out but no reported falls. Thus, the examiner was unable to find a nexus between the Veteran's current left shoulder rotator cuff tear and his mild AC osteoarthritis and right shoulder strain and his low back disability. Furthermore, the March 2021 examiner opined the left and right shoulder conditions are less likely than not aggravated by his service-connected lumbar spine disability. There is no plausible explanation that his bilateral shoulder condition would be related to any low back condition or low extremity condition. The examiner was unable to find a documented shoulder injury from his stated falls. Thus, the examiner was unable to find a nexus between the Veteran's current left shoulder rotator cuff tear and his mild AC osteoarthritis and right shoulder strain and his low back disability. The Board notes that the Veteran is generally competent to report when he first experienced symptoms of shoulder pain or signs of a shoulder injury. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered, and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a Veteran's testimony simply because he is an interested party and stands to gain monetary benefits. However, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Board finds that the Veteran's statements that his bilateral shoulder disabilities are related to service and/or connected to or aggravated by his service-connected lumbar spine disability are not credible. Specifically, the Veteran indicated that he improperly lifted, pulled, carried, and reached with his shoulders as a direct result of his low back disability while also simultaneously trying not to aggravate his back. In this regard, the Veteran's statements are inconsistent with the other evidence of record. The service treatment records are silent for any treatment, complaints, or diagnoses for any bilateral shoulder issues. The March 1980 enlistment examination and the May 1984 separation examination were negative for any shoulder issues. The June 1983 examination reflected the Veteran's related denials of arthritis or rheumatism, bone, joint, or other deformity, and painful or "trick" shoulder or elbow. Further, the first documentation of any shoulder problems was in 2004, approximately 20 years after active service. Later, there was a diagnosis of osteoarthrosis of the left shoulder in 2017 and degenerative changes in the right shoulder in 2018. The left shoulder partial rotator cuff injury was diagnosed in 2020. The records do not show consistent medical treatment during that span of time. The Veteran did not report any shoulder injuries because of falling incidents. Moreover, there is highly probative medical opinions of record indicating that the Veteran's current bilateral shoulder are not related to active service. Furthermore, the medical opinions of record also indicates that the Veteran's lumbar spine disability or any other lumbar spine disabilities did not cause or aggravate his bilateral shoulder disabilities. While the laypersons are competent to report observable symptoms, the Veteran is not competent to provide a medical opinion linking his bilateral shoulder related disabilities to an in-service injury or occurrence or to a service-connected disability as that would require medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. In sum, the Board finds that the Veteran's bilateral shoulder disabilities that include those diagnosed during the appeal period are not entitled to direct service connection or secondary service connection by proximate cause or by aggravation due to a lack of nexus as established above. There is no competent medical evidence that establishes otherwise. See Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to a service connection for bilateral shoulder disabilities is not warranted on a direct or secondary basis. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating-Back Disability The Veteran asserts that he should have higher ratings for his back disability as his symptoms are not adequately contemplated by the currently assigned ratings. At an August 2012 VA examination, the Veteran reported experiencing constant low back pain. He reported that the pain traveled into his lower extremities. The Veteran reported that he had two lumbar epidural steroid injections, the last being in March 2012. He reported that his pain was not relieved by the epidural steroid injections. The Veteran reported experiencing flare-ups of his back pain, during which he was unable to walk, bend, or twist. The Veteran reported that his back disability limited his ability to walk or stand more than 15 minutes at a time. The Veteran denied any bowel, bladder, and erectile dysfunction because of his back disability. He denied any hospitalizations and reported that his back disability had not resulted in incapacitation. The Veteran reported his overall functional impairment resulting from his back disability to consist of an inability to stand or walk for prolonged periods. The Veteran's back disability does impact his ability to work. Upon physical examination, the Veteran's posture was normal, and he walked with a normal gait. The Veteran was not noted to use any assistive device for locomotion because of his back disability. There were no muscle spasms, but there was tenderness to palpation of the spine. There was no guarding, and the examination did not reveal any weakness. Muscle tone and musculature was normal. Straight leg raising test was negative, bilaterally. There was no atrophy and there was no ankylosis of the spine. The Veteran was noted to have radicular pain to include moderate constant pain of the left lower extremity and left side sciatic nerve involvement. The examiner diagnosed moderate left side radiculopathy. Thoracolumbar spine range of motion measurements were as follows: flexion to 90 degrees; extension to 15 degrees; right and left lateral flexion to 30 degrees; and right and left lateral rotation to 30 degrees each. The Veteran was able to perform repetitive use testing and there was additional limitation of function following repetition described as pain on movement and less movement than normal. There was no abnormal curvature of the spine. Reflex examination was normal for left knee and left ankle but absent for right knee and right ankle. Sensory examination was normal but there were signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement. The examiner diagnosed degenerative joint disease of the lumbar spine with radiculopathy symptoms. Arthritis was documented. At a December 2015 VA examination, the Veteran reported that he had spinal fusion surgery of the L4-L5 after many years of not knowing the origin of his hip and thigh pain. He reported that since his spinal fusion he has had relief of his radiculopathy. The Veteran did not have any radicular pain. The Veteran denied experiencing flare-ups of his back pain. He reported having functional loss in which he was unable to run, bend, jump or climb. The Veteran indicated that he had back pain with prolonged sitting or standing. The Veteran denied any bowel, bladder, and erectile dysfunction because of his back disability. He denied having intervertebral disc syndrome (IVIDS) of the back. He denied any hospitalizations and reported that his back disability had not resulted in incapacitation. The Veteran reported his overall functional impairment resulting from his back disability to consist of an inability to stand or sit for prolonged periods. The Veteran's back disability does impact his ability to work. Upon physical examination, the Veteran was not noted to use any assistive device for locomotion because of his back disability. There were no muscle spasms or tenderness to palpation of the spine. There was no guarding and examination did not reveal any weakness. Muscle tone and musculature was normal. Straight leg raising test was negative, bilaterally. There was no atrophy and there was no ankylosis of the spine. There was evidence of pain on weight-bearing. The range of motion itself does contribute to a functional loss. There was pain noted on the examination that caused functional loss on forward flexion, extension, and right lateral rotation. Thoracolumbar spine range of motion measurements were as follows: flexion to 70 degrees; extension to 20 degrees; right and left lateral flexion to 30 degrees; and right and left lateral rotation to 30 degrees each. The Veteran was able to perform repetitive use testing and there was no additional limitation of function or motion following repetition. Pain did not limit functional ability with repeated use over a period of time. Sensory and reflex examinations were normal. The examiner diagnosed with degenerative arthritis of the back and spinal fusion. Arthritis was documented. At an April 2018 VA examination, the Veteran reported experiencing bilateral soreness in the lower back. He also reports pain in the left buttock area, radiating down to his lower extremities. He indicates that the radiating pain is much improved since his back surgery in 2013. He experienced mild left lower extremity paresthesias and/or dysesthesias. The Veteran was diagnosed with mild left side radiculopathy involving sciatica nerve roots. The Veteran denied experiencing flare-ups of his back pain. He reported having functional loss in which he cannot tie his shoes, lift, or do anything that has to do with bending. The Veteran denied any bowel, bladder, and erectile dysfunction because of his back disability. He has intervertebral disc syndrome (IVIDS) of the back. The Veteran reported his overall functional impairment resulting from his back disability to consist of an inability to bend over, lift things, disturbance of locomotion, and interference with standing. The Veteran's back disability does impact his ability to work. Upon physical examination, the Veteran's posture was normal, and he walked with a normal gait. There were no muscle spasms or tenderness to palpation of the spine. There was guarding but not resulting abnormal gait or abnormal spinal contour. Muscle tone and musculature was normal except for his ankles. Straight leg raising test was negative, bilaterally. There was no atrophy and there was no ankylosis of the spine. There was evidence of pain on weight-bearing. The range of motion itself does contribute to a functional loss. There was pain noted on the examination that caused functional loss on right and left lateral flexion and right and left lateral rotation. Thoracolumbar spine range of motion measurements were as follows: flexion to 45 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 20 degrees; and right and left lateral rotation to 25 degrees each. The Veteran was able to perform repetitive use testing and there was no additional limitation of function or motion following repetition. Pain did limit functional ability with repeated use over a period of time. The examiner declined to describe functional loss in terms of limitation of motion and refused to address the Correia questions regarding passive and active motion with weight-bearing and non-weight-bearing. There was no evidence of pain on non-weight-bearing. Sensory and reflex examinations were normal. The examiner diagnosed with degenerative arthritis of the spine, IVIDS, and spinal fusion. Arthritis was documented. At a June 2020 VA examination, the Veteran reported experiencing radiating pain radiating down to his lower extremities. He reports having difficulty with chores around the house such as mowing the lawn or loading his car after grocery shopping. He has trouble after prolonged sitting. The Veteran reported experiencing back pain, during which he was unable to lift, bend, or twist reducing his willingness to perform daily functions that involve the noted body movements. The Veteran experienced radicular pain. The Veteran experienced mild left and right lower extremity paresthesias and/or dysesthesias and moderate intermittent pain of the right and left lower extremity. The Veteran was diagnosed with moderate left and right-side radiculopathy involving sciatica nerve roots. The Veteran denied experiencing flare-ups of his back pain. The Veteran denied any bowel, bladder, and erectile dysfunction as because of his back disability. He has intervertebral disc syndrome (IVIDS) of the back with no episodes of bed rest. The Veteran reported his overall functional impairment resulting from his back pain as prolonged sitting and walking. The Veteran's back disability does impact his ability to work. Upon physical examination, the Veteran's posture was normal, and he walked with a normal gait. There were muscle spasms and tenderness to palpation of the spine. The palpation areas are the paraspinous areas. There was guarding and muscle spasms but not resulting in abnormal gait or abnormal spinal contour. Muscle tone and musculature were normal. Straight leg raising test was positive, bilaterally. There was no atrophy and there was no ankylosis of the spine. There was evidence of pain on weight-bearing. The range of motion itself does contribute to a functional loss. There was pain noted on the examination that caused functional loss on forward flexion, extension, right and left lateral flexion and right and left lateral rotation. Thoracolumbar spine range of motion measurements were as follows: flexion to 70 degrees; extension to 30 degrees; right lateral flexion to 25 degrees; left lateral flexion to 25 degrees; and right and left lateral rotation to 30 degrees each. The Veteran was able to perform repetitive use testing and there was no additional limitation of function or motion following repetition or repeated use over time. Sensory and reflex examinations were normal. The examiner diagnosed with degenerative arthritis of the spine, IVIDS, and spinal fusion. Arthritis was documented. There is no evidence of pain on passive range of motion testing of the back. There is no evidence of pain on non-weight-bearing testing of the back. A review of the record shows that the Veteran receives treatment for his back disability at the VA Medical Center. A review of the treatment notes of record tends to show that the Veteran generally reports chronic back pain, that has continued to progress over time. Specifically, in January 2012, the Veteran had difficulties with pain in his lower back and weakness and pain in the left leg. Further, the examiner noted that the Veteran was diagnosed with degenerative disc disease at the L4-L5 level and that he would not be well suited for certain types of work. In December 2015, the Veteran reported burning pain between the right hip and lower back over the past couple of weeks that was a 6 out of 10 in intensity. The pain is worse in the morning if over-used the day before. A January 2020 VA Medical center note indicated that the Veteran had 30 degrees of flexion. The remainder of the treatment notes of record do not show symptoms worse than those reported in the VA examination reports of record, to specifically include limitation of motion, decreased function following repeated use over a period of time, or decreased function during a flare-up. The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent prior to October 8, 2013, for his back disability. In this regard, prior to that date, there is no indication from the record that the Veteran has flexion of the thoracolumbar spine that was limited to 60 degrees or less. In fact, at his August 2012 VA examination, the Veteran's flexion was limited to, at worst, 90 degrees. Further, the Veteran reported experiencing pain with flare-ups. The flare-ups were worse with walking. Additionally, the Board notes that the VA examiner took into consideration additional limitation due to pain when reporting the range of motion measurements. There was no additional limitation of motion but there was functional loss with pain on movement and less movement than normal after repetitive use. The Board does not doubt that the Veteran's lumbar spine disability cause symptoms of pain or increased pain with prolonged standing and walking. However, even accounting for additional functional limitation due to such reports of pain, the April 2012 examination report summarized above reflect that the lumbar spine disability has not been shown to produce additional impairment of flexion due to pain or functional loss that would warrant a rating higher. There is no indication that the Veteran has flexion of 60 degrees or less prior to October 8, 2013. As such, there remains no basis for assignment of a higher rating prior to October 8, 2013, even when considering all pertinent disability factors. 38 C.F.R. § 4.40, 4.45 (2020). As such, an initial rating in excess of 10 percent is not warranted for the period prior to October 8, 2013. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2020). Further, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for the period of January 1, 2014 to December 19, 2016, for his back disability. In this regard, during the period of January 1, 2014 to December 19, 2016, there is no indication from the record that the Veteran has flexion of the thoracolumbar spine that was limited to 60 degrees or less. In fact, at his December 2015 VA examination, the Veteran's flexion was limited to, at worst, 70 degrees. Additionally, the Board notes that the VA examiner took into consideration additional limitation due to pain when reporting the range of motion measurements. There was no additional limitation of motion or function after repetitive use or repeated use over time. The Board does not doubt that the Veteran's lumbar spine disability cause symptoms of pain or increased pain with prolonged sitting, bending, standing or walking. However, even accounting for the functional loss due to such reports of pain with walking, sitting, or standing, the December 2015 examination report summarized above reflect that the lumbar spine disability has not been shown to produce additional impairment of flexion due to pain or functional loss that would warrant a rating higher. There is no indication that the Veteran has flexion of 60 degrees or less during the period of January 1, 2014 to December 19, 2016. As such, there remains no basis for the assignment of a higher rating during the period noted above, even when considering all pertinent disability factors. 38 C.F.R. § 4.40, 4.45 (2020). As such, an initial rating in excess of 10 percent is not warranted for the period of January 1, 2014 to December 19, 2016. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2020). The Board finds that the Veteran is entitled to a 20 percent rating for his back disability for the period of December 19, 2016 to January 9, 2020. In this regard, the Board notes that the Veteran first informed VA that his back disability had increased in severity in his December 19, 2016 Notice of Disagreement. Further, the April 2018 VA examination, the Veteran indicated that he still has radiating pain since the October 2013 spinal fusion surgery. He further stated he had functional loss in which he cannot tie his shoes, lift, or do anything that has to do with bending. The Veteran was noted to have forward flexion to 45 degrees at his April 2018 VA examination. Therefore, a 20 percent rating is warranted for the period from December 19, 2016, to January 9, 2020. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2019). Consideration has been given to assigning a higher rating for the period from December 19, 2016 to January 9, 2020. However, there is no indication from the record that the Veteran had forward flexion limited to 30 degrees or less. As noted, the Veteran was noted to have flexion to 45 degrees at his April 2018 VA examination. Additionally, the Board notes that the VA examiner took into consideration additional limitation due to pain when reporting the active range of motion measurements. There was no additional limitation of motion or function after repetitive use. Pain caused functional loss with repeated use over time. The Board acknowledges that the examiner in refusing to describe the Veteran's pain that caused functional loss in terms of limitation of motion clearly violates the Court decision in Correia v. McDonald, 28 Vet. App. 158 (2016). There is no objective evidence during this time period that establishes a lesser limitation of flexion due to functional loss. Further, the Board does not doubt that the Veteran's lumbar spine disability cause symptoms of pain or increased pain with prolonged lifting, bending, standing, or walking. However, even accounting for the functional loss due to such reports of pain with bending or lifting, the April 2018 examination report summarized above reflect that the lumbar spine disability has not been shown to produce additional impairment of flexion due to pain or functional loss that would warrant a rating higher. There is no indication that the Veteran has flexion of 30 degrees or less during the period of December 19, 2016 to January 9, 2020. As such, there remains no basis for assignment of a higher rating during the period noted above, even when considering all pertinent disability factors. 38 C.F.R. § 4.40, 4.45 (2020). As such, a rating in excess of 20 percent is not warranted for the period from December 19, 2019 to January 9, 2020. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2020). The Board finds that the Veteran was assigned a rating of 40 percent for his back disability beginning January 9, 2020, the date the medical evidence warranted an increased evaluation. See CAPRI records received February 5, 2020. Consideration has been given to assigning a higher rating beginning January 9, 2020. However, there is no indication from the record that the Veteran has ankylosis of the spine. Therefore, the Board finds that a rating in excess of 40 percent beginning January 9, 2020 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2020). In addition, the Board acknowledges the June 2020 VA examination which is Correia compliant. However, the examination appears to reflect that the Veteran's lumbar spine disability has improved since his last VA examination in April 2018. The examination has no bearing on the Veteran's disability status at this time. The issue is not before the Board. TDIU from February 21, 2012 The Veteran asserts he is unable to work because of his service-connected disabilities. See March 2015 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. A TDIU is warranted where the evidence of record shows that a Veteran is unable to secure or follow a substantially gainful occupation, consistent with her education and occupational experience, because of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more. If there are two or more 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. §§ 3.340, 3.341, 4.16(a). Service-connection is in effect for the right knee, rated 40 percent; the right ankle, rated 40 percent; a lumbar spine disability, rated 40 percent; radiculopathy (RLE), rated 20 percent; tinnitus, rated 10 percent; radiculopathy (LLE), rated 10 percent; left ankle fracture, rated noncompensable; right hearing loss disability, rated noncompensable; and residual scars right ankle/right knee, rated noncompensable; and residual scars lumbar spine, rated noncompensable. The Veteran's combined rating is 70 percent since February 21, 2012. Therefore, the Veteran meets the schedular criteria for assignment of a TDIU. 38 C.F.R. § 4.16. A review of the record shows that the Veteran has completed high school with a work history that included real estate agent and handyman. The Veteran's last full-time job was working as a real estate agent in 2010. The Veteran continued to work as a real estate agent after 2010 but not full-time. The Veteran hours worked after 2010 ranged from a high of 25 hours per week to a low of 5 hours per week. See April 2013 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Additional records show that the Veteran is not currently working. The records indicate that the Veteran retired in 2015 and was not doing any large projects. The Veteran currently lives with his girlfriend and does the yard work. An April 2006 VA treatment note indicated that the Veteran reported in trying to work as a real estate broker, he has developed problem being on his feet and walking all day because of a fused right ankle and right knee that will not straighten completely. An October 2010 VA treatment record shows that the Veteran had twelve weeks of time lost from work in the last twelve-month period. It was further noted that the cause of time missed from work was the totality of all ortho conditions, not just the hip. In an October 2010 statement of support, the Veteran's father stated that at this time the Veteran is no longer able to provide a home for himself due to his lack of income. He now lives with his father. In a January 2012 letter, a staff physician stated that the Veteran's subjective concerns combined with the findings noted in these studies certainly suggest that he is not well suited to certain types of work-particularly those that have heavy lifting, carrying, and other activities of this nature. The physician further stated that he may be able to continue work in other settings, desk work for example, if he is given flexibility to make accommodations to his workspace and schedule. A May 2012 VA treatment record indicated that the Veteran had been a real estate agent for the last seven years. He complained of difficulty working due to pain. The Veteran's driver's license was taken away due to his inability to make child support payments. At an August 2012 VA ankle examination, the examiner noted that the Veteran's ankle disability does impact his ability to work. The Veteran is not able to walk more than fifteen minutes before he must rest. At an August 2012 VA knee examination, the examiner noted that the Veteran's knee disability does impact his ability to work. The Veteran finds it hard to go up and down stairs, sit in cramped places, or walk more than fifteen minutes. At an August 2012 VA back examination, the examiner noted that the Veteran's back disability does impact his ability to work. The Veteran cannot walk or stand for more than fifteen minutes. At a November 2015 VA Medical Center visit, the Veteran reported not working. A November 2015 orthopedic consult note indicated that the Veteran stated that he is retired, and he repairs things around the house. He is not doing anymore large projects. At a December 2015 VA back examination, the examiner noted that the Veteran's back disability does impact his ability to work. The examiner noted his spinal fusion surgery. At a December 2015 VA knee examination, the examiner noted that the Veteran's knee disability does impact his ability to work. The examiner noted that the Veteran is unable to fully extend or bend at the knee which compromises stability at the joint. The inability to fully extend at the knee causes significant mechanical leg length discrepancy and forces an antalgic gait. This reduces his efficiency of locomotion. He cannot perform high impact activities such as running, jumping, or climbing, and he cannot bend at the knee to squat. A December 2020 VA examiner opined that the Veteran was least as likely as not to be unable to secure or maintain a substantially gainful occupation in a physical or sedentary work environment. The flare-ups of symptoms will occur with minimal activities. Upon the review of above, the Board finds that the combined impact of the Veteran's service-connected disabilities has rendered him unemployable in a physical or sedentary work environment. His physical limitations would require significant absences from work, and prohibit any task requiring normal working movements of the body and physical dexterity of the back, ankle, or right knee, to include prolonged standing, climbing, and/or walking required in showing real estate properties. Further, the noted service-connected disabilities would make it very challenging for the Veteran to be productive in any occupational environment on a consistent basis. Thus, in light of the Veteran's educational background, work experience, and degree of physical impairment; the Board finds that the Veteran is precluded from obtaining and maintaining any form of substantially gainful employment from February 21, 2012. In reaching this conclusion, the Board is cognizant of the Veteran continuing to work in the capacity of a real agent after his full-time employment in 2010. However, the ability to work sporadically or to obtain marginal employment does not qualify as substantially gainful employment. 38 C.F.R. § 4.16(a) (2017); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In this regard, "marginal employment" is classified as earned annual income that does not exceed the poverty threshold for one person. 38 C.F.R. § 4.16(a) (2020). Here, the Veteran's part-time employment in 2007 and after yields monthly earnings that are inconsistent due to his inability to consistently report for work because of physical limitations. Thus, the Veteran's position constitutes only marginal, and not substantially gainful, employment. (Continued on the next page) Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to a TDIU from February 21, 2012 is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (2020). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.