Citation Nr: 21075601 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-11 950 DATE: December 21, 2021 ORDER Entitlement to an evaluation in excess of 20 percent disabling for service-connected paraspinal lumbar spasms prior to August 30, 2021, and in excess of 40 percent disabling for paraspinal lumbar spasms, degenerative arthritis, intervertebral disc syndrome (IVDS), and spinal stenosis, thereafter, is denied. Entitlement to a temporary total rating for convalescence for a low back disability pursuant to 38 C.F.R. § 4.3 is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to August 30, 2021, the Veteran's disability of paraspinal lumbar spasms was manifested by no worse than forward flexion limited to 40 degrees with pain, and interference with walking, standing and sitting. 2. From August 30, 2021 forward, the Veteran's paraspinal lumbar spasms, degenerative arthritis, intervertebral disc syndrome (IVDS), and spinal stenosis, have been manifested by forward flexion of 30 degrees or less, with no evidence of ankylosis or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 3. Throughout the appeal period, the Veteran's low back disability has not required at least one month of convalescence or resulted in severe postoperative residuals. 4. Resolving all doubt in the Veteran's favor, the evidence of record shows that the Veteran's service-connected disabilities render him unable to secure or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an evaluation in excess of 20 percent disabling for service-connected paraspinal lumbar spasms prior to August 30, 2021, and in excess of 40 percent disabling for paraspinal lumbar spasms, degenerative arthritis, IVDS, and spinal stenosis, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5242 (2020). 2. The criteria for establishing entitlement to a temporary total rating for convalescence for a low back disability pursuant to 38 C.F.R. § 4.3 have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.30 (2020). 3. The criteria for establishing entitlement to a total disability rating based upon individual unemployability (TDIU) have been shown. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to June 1984 and from May 1988 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case has an extensive procedural history, which the Board will not reiterate here except to note that all claims were most recently remanded by the Board in April 2021. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2020). The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2020). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness which causes additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40 (2020); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45 (2020). Additionally, evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2020). 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. Id.; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an evaluation in excess of 20 percent disabling for service-connected paraspinal lumbar spasms prior to August 30, 2021, and in excess of 40 percent disabling for paraspinal lumbar spasms, degenerative arthritis, intervertebral disc syndrome (IVDS), and spinal stenosis, thereafter The Veteran contends that the current severity of his lumbar spine disability warrants a higher evaluation throughout the appeal period. More specifically, he reports severe pain, limited range of motion, difficulty bending, siting, standing, or walking for prolonged periods. For the reasons stated in more detail below, the preponderance of the evidence is against his claim. The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5242. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Additionally, the Board observes that a recent Decision Review Officer decision, dated September 2021, increased the assigned evaluation of the Veteran's service-connected paraspinal lumbar spasms, degenerative arthritis, IVDS, and spinal stenosis from 20 percent to 40 percent disabling, effective August 30, 2021. The decision also granted service connection for radiculopathy, left lower extremity, sciatic nerve and assigned an evaluation of 20 percent disabling, effective August 30, 2021. A separate evaluation of 10 percent disabling was assigned for radiculopathy, right lower extremity, sciatic nerve, with the same effective date. Under the General Formula, a 10 percent rating is warranted for limited forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a 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 limited forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a 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 limited forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. For VA purposes, normal range of motion for the thoracolumbar spine is flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and rotation from 0 to 30 degrees. The combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. Alternatively, a back disability can also be evaluated as intervertebral disc syndrome (IVDS) with incapacitating episodes. Under the criteria listed in Diagnostic Code 5243, a 10 percent evaluation requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. As there is no evidence of prescribed bed rest by a physician and treatment by a physician for IVDS, Diagnostic Code 5243 is not for application. In this case, the Board has reviewed the competent evidence of record and finds no support for the assignment of the next higher evaluation of 40 percent disabling for the Veteran's service-connected lumbar spine condition prior to August 30, 2021, or in excess of 40 percent disabling, thereafter. Review of the record indicates that the Veteran has continued to seek treatment for his lumbar spine disability. Treatment has included physical therapy, epidural injections, acupuncture, and chiropractic care. The record also shows that the Veteran has been afforded multiple VA examinations. In March 2013, the VA examiner listed the Veteran's previous diagnosis of paraspinal lumbar spasms as resolved. An additional diagnosis of lumbar herniated discs with retrolisthesis was deemed an active condition. During the clinical interview, the Veteran reported worsening low back pain that impaired his ability to sit or stand for prolonged periods. Range of motion testing revealed forward flexion limited to 50 degrees, extension limited to 0 degrees, right lateral flexion limited to 5 degrees, left lateral flexion limited ot 10 degrees, and right and left lateral rotation limited to 15 degrees. Pain was noted on examination with all ranges of motion. No additional loss of range of motion was observed with repetitive use testing. There was no evidence of muscle atrophy, crepitus, or ankylosis. Muscle strength, deep tendon reflexes, and sensation was normal. Straight leg testing was negative. The Veteran denied any experience with muscle spasms or guarding. Additional factors contributing to the Veteran's disability included pain on movement, and less movement than normal. The Veteran denied any experience with radicular pain. Although intervertebral disc syndrome (IVDS) was documented, no incapacitating episodes were reported over the previous 12 months month period. Regular use of a back brace and cane was reported. On examination in June 2015, the VA examiner listed current diagnoses of paraspinal lumbar spasms and lumbar herniated discs with retrolisthesis. During the clinical interview, the Veteran reported daily back pain with flare-ups resulting in decreased movement. The Veteran denied any limitation of his ability to perform activities of daily living. Range of motion testing revealed forward flexion limited to 40 degrees, extension limited to 5 degrees, left and right lateral flexion limited to 15 degrees, and left and right lateral rotation limited to 20 degrees. There was no evidence of muscle atrophy, crepitus, or ankylosis. The examiner noted no additional loss of function or loss of range of motion after repetitive use testing. Neither pain, weakness, fatigability or incoordination limited his functional ability over time with repetitive use, to include during flare-ups. Muscle strength, deep tendon reflexes, and sensation were normal. Straight leg testing was negative. There was no evidence of radiculopathy, guarding or muscle spasms. Although symptoms of IVDS were present, no incapacitating episodes were reported over the previous 12-month period. The Veteran described functional loss as an inability to bend, stand for more than 15 minutes, or sit longer than 30 minutes. In a January 2018 Board decision, the Veteran's claim was remanded for an additional VA opinion as the previous findings failed to consider limitation of passive range of motion. Accordingly, the Veteran underwent an additional VA examination in March 2018. A current diagnosis of paraspinal lumbar spasms with facet arthrosis, disc bulge and retrolisthesis was indicated. During the clinical interview, the Veteran reported worsening low back pain with flare-ups occurring 20-25 days per month and limitations on bending, lifting, and climbing stairs. A flare-up was noted in the date of examination. Range of motion testing revealed forward flexion limited to 40 degrees, extension limited to 10 degrees, right and left lateral flexion limited to 10 degrees, and right and left lateral rotation limited ot 20 degrees. The examiner noted that repetitive use testing could not be performed due to pain and concern regarding the Veteran's safety. An inability to comment without mere speculation was reported as due to further limitations or functional ability with repeated use over time. He explained that despite gathering a full history, the examiner could not support or contradict the Veteran's statements regarding functional loss with repetitive use over time. In accordance with an October 2018 Joint Motion for Partial Remand (JMPR), issued by the United States Court of Appeals for Veterans Claims (CAVC) and implemented by a March 2019 Board decision, the Veteran's claim was remanded for an additional VA opinion. On examination in November 2019, the previous diagnosis of paraspinal lumbar spasms was confirmed. During the clinical interview, the Veteran described progressive worsening as a constant burning and grabbing low back pain that radiates to both hips and into the anterior thigh on the right side. Pain was rated as an 8 on a 10-point scale. Prescribed treatments have included epidural injections, deep tissue massage, and oral medications, Tramadol, Oxycodone, Duloxetine, and Gabapentin. Flare-ups were described as increasing pain with weather changes and increased physical activity, to include climbing stairs and maintaining personal care. After onset, symptoms persist for 2-3 days. Flare-ups occur every 3 months. Functional loss associated with flare-ups include difficulty walking more than 60 feet, standing in excess of 5 minutes, driving for more than 60 minutes, climbing stairs or lifting more than 5-10 pounds. Range of motion testing revealed forward flexion limited to 65 degrees, with full extension, right and left lateral flexion, and right and left lateral rotation. Abnormal range of motion contributes to functional loss as to difficulty reaching forward. Pain was observed with flexion, extension, left and right lateral flexion and it contributes to functional loss. There was on objective evidence of localized tenderness, pain to palpation, or pain with weight-bearing. Pain cases functional loss over time with repetitive use, to include with flare-ups. No guarding or muscle spasms were observed on examination. Deep tendon reflexes, muscle strength and straight leg raise testing yielded normal findings. There was no evidence of muscle atrophy or ankylosis. There was also no evidence of radiculopathy or IVDS. The Veteran endorsed constant use of a cane due to paraspinal lumbar spasms. Magnetic resonance imaging (MRI), dated May 2012, revealed a 3-mm retrolisthesis of L5/S1, small broad-based herniation of disc at L4-L5, disc bulge described as superimposed small broad-based herniation of disc at L5-S1, and mild foraminal narrowing at L4-L5, L5-S1. The Veteran described a functional impact as difficulty walking longer that 20-40 minutes, sitting for more than 30 minutes, lifting more than 10-15 pounds (lbs.), or climbing multiple flights of stairs. Considering the Correia factors, there was no evidence of pain with non-weight bearing. Passive range of motion tests was not performed. Following the clinical evaluation, the examiner indicated that no change in service-connected diagnosis was deemed necessary, and no additional diagnoses were rendered. Pursuant to an April 2021 Board decision, the Veteran's claim was again, remanded. Therein, it was noted that the November 2019 VA examiner failed to comply substantially comply with prior remand directives, to include conducting passive range of motion testing. The examiner also failed to distinguish the Veteran's symptoms related to his service-connected paraspinal lumbar spasms and other nonservice-connected low back disabilities. Thereafter, the Veteran was scheduled for a new VA examination. On examination in August 2021, current diagnoses included degenerative arthritis, intervertebral disc syndrome, and spinal stenosis. Other diagnoses included paraspinal lumbar spasms, and a 3-mm retrolisthesis of L5-S1. During the clinical interview, the Veteran reported worsening low back and hip pain, rated as a 7 or 8 on a 10-point scale. Prescribed treatments include oral medications, Tramadol, Gabapentin, Oxycodone, and Duloxetine. The Veteran described a functional impact as an inability to work since 2012 due to severe low back pain and muscle spasms that impair his ability to sleep, perform normal activities of daily living (including personal grooming), lift more than 5 pounds, bend, walk, sit or stand for prolonged periods due to an unsteady gait and impaired posture. To aid with ambulation, he endorsed constant use of a cane, walker, or scooter. Flare-ups occur weekly and include severe pain that persists for 1-2 days after onset. Range of motion testing revealed forward flexion limited to 10 degrees, extension limited to 0 degrees, left lateral flexion limited to 25, right lateral flexion limited to 20 degrees, right lateral rotation limited to 20 degrees, and left rotation limited to 20 degrees. Evidence of pain was observed with all ranges of motion. Passive range of motion mirrored active motion findings. Abnormal range of motion contributes to functional loss in terms of an inability to stand erect, climb stairs, or perform most activities of daily living. Impaired balance and an antalgic gait despite use of a cane was acknowledged. Moderate localized tenderness or pain to light palpation was located along the lower paraspinal soft tissues, bilaterally. Objective evidence of crepitus was documented. A loss of 5-10 degrees of motion was noted in all directions. Pain, fatigability, weakness, lack of endurance, incoordination contributes to functional loss over time with repetitive use. Guarding and muscle spasms cause an abnormal gait or spinal contour. Muscle strength was slight reduced, however, there was no evidence of muscle atrophy or ankylosis. Decreased sensation impacted the left lower leg and bilateral feet. Straight leg raise testing was positive in the left leg only. Mild radiculopathy impacted the right lower extremity, with moderate symptomology on the left side. Involvement of the sciatic nerve was noted, bilaterally. Favorable findings of IVDS, included episodes requiring bed rest for a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. No other pertinent physical findings were identified. Magnetic resonance imaging performed in June 2021 was unavailable for review. However, the diagnostic impression from the previous evaluation in May 2012, revealed a 3 mm retrolisthesis of L5/S1, small broad-based herniation of disc at L4-L5., disc bulge, superimposed small broad-based herniation of disc at L5-S1, and mild foraminal narrowing at L4-L5, L5-S1. X-ray films, dated September 2011, noted the appearance of small Schmorl's nodes with no interval change. The examiner suggested that the Veteran's additional lumbar spinal diagnoses represent a progression of symptoms for his original service-connected diagnosis of paraspinal lumbar spasm. The opinion also noted that range of motion testing was conducted with support due to an increased risk of falls. After a thorough review of the record, prior to August 30, 2021, the medical evidence fails to demonstrate limited flexion or IVDS with incapacitating episodes sufficient to warrant a higher evaluation of 40 percent disabling. In fact, the Veteran's flexion was limited to no worse than 65 degrees with IVDS and no incapacitating episodes. The Board has considered whether a higher rating may be warranted based on functional loss due to pain, weakness, fatigability, incoordination, or pain on movement under 38 C.F.R. §§ 4.40 and 4.45 prior to August 30, 2021. See also DeLuca, 8 Vet. App. 202. With regard to functional loss, as cited above, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. The Board has considered the competent and credible lay evidence from the Veteran when considering functional loss. However, an increased evaluation beyond the 20 percent disability rating, on the basis of functional loss described as chronic pain with difficulty walking longer that 20-40 minutes, sitting for more than 30 minutes, lifting more than 10-15 lbs., or climbing multiple flights of stairs prior to August 2021 is not warranted, as there is no evidence of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 4 (U.S. 2021) (holding that evidence of functional equivalent of ankylosis during a flare-up requires consideration of rating factors in 38 C.F.R. §§ 4.40 and 4.45 but not if there is no such evidence, citing Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) and Spencer v. West, 13 Vet. App. 376, 382 (2000)). Moreover, the Board recognizes that separate evaluations have been assigned regarding bilateral lower extremity radiculopathy from August 30, 2021 forward. Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); See Gilbert v. Derwinski, 1 Vet. App. 49, 553 (1990). The Veteran's claim of entitlement to an evaluation in excess of 20 percent disabling for service-connected paraspinal lumbar spasms prior to August 30, 2021, and in excess of 40 percent disabling for paraspinal lumbar spasms, degenerative arthritis, intervertebral disc syndrome (IVDS), and spinal stenosis, thereafter, must be denied. 2. Entitlement to a temporary total rating for convalescence for a low back disability pursuant to 38 C.F.R. § 4.3 The Veteran asserts that he is entitled to a temporary total evaluation due to medical convalescence. The Veteran did not specify to which disability he referred. Temporary total disability ratings will be assigned when treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence, (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited), and (3) Or, immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. The Veteran is currently service connected for multiple conditions, the most severe of which his lumbar spine condition. From August 30, 2021, the Veteran's lumbar spine is evaluated as 40 percent disabling. During the period on appeal, the medical evidence has not shown that the Veteran has been immobilized by a cast, underwent therapeutic immobilization of a major joint, has been confined to his home, required a wheelchair or crutches, experienced incompletely healed surgical wounds or amputations, and did not have surgery necessitating at least one month of convalescence. In fact, the medical evidence is silent for any evidence that the Veteran's lumbar spine condition has required surgical intervention. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of entitlement to a temporary total evaluation due to medical convalescence. Therefore, the benefit of the doubt rule does not apply and the Veteran's claim is denied. 38 C.F.R. § 5107 (2012); 38 C.F.R. § 3.102 (2020). 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) The Veteran contends that his service-connected disabilities have rendered him incapable of securing or maintaining any substantially gainful occupation. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2020). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). Review of the record indicates that the Veteran has been granted service connection for the following conditions; paraspinal lumbar spasms, degenerative arthritis, IVDS, spinal stenosis (formerly evaluated under Diagnostic Code 5295) evaluated as 20 percent disabling from September 1, 2002, (Diagnostic Code 5299-5243) evaluated as 40 percent disabling from August 30, 2021; irritable bowel syndrome with gastroesophageal reflux disease (GERD) (previously rated as gastroesophageal reflux disease) evaluated as 30 percent disabling from April 24, 2018, adjustment disorder with mixed anxiety and depressed mood (also claimed as chronic sleep impairment, anxiety, depression) associated with paraspinal lumbar spasms, degenerative arthritis, IVDS, spinal stenosis (formerly evaluated under Diagnostic Code 5295) evaluated as 30 percent disabling from April 24, 2018, left shoulder arthralgia (non-dominant) evaluated as 20 percent disabling from April 24, 2018, radiculopathy, left lower extremity, sciatic nerve associated with paraspinal lumbar spasms, degenerative arthritis, IVDS, spinal stenosis (formerly evaluated under Diagnostic Code 5295) evaluated as 20 percent disabling from August 30, 2021, tinnitus (claimed as tinnitus/vertigo) evaluated as 10 percent disabling from September 1, 2002; hypothyroidism, status-post (s/p) I-131 ablation, Graves' disease evaluated as 10 percent disabling from September 1, 2002; radiculopathy, right lower extremity, sciatic nerve associated with paraspinal lumbar spasms, degenerative arthritis, IVDS, spinal stenosis (formerly evaluated under Diagnostic Code 5295), evaluated as 10 percent disabling from August 30, 2016; bilateral hearing loss evaluated as non-compensable from September 1, 2002, and allergic rhinitis evaluated as non-compensable from April 24, 2018. The combined schedular evaluation for the Veteran's service-connected disabilities was 40 percent disabling from September 1, 2002, and 80 percent disabling from April 24, 2018, and 90 percent disabling from August 30, 2021. Thus, the remaining 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). In light of the competent medical evidence and lay statements of record, the Board concludes that the Veteran is entitled to an award of TDIU benefits. Review of the record indicates that the Veteran initially suggested entitlement to a TDIU in a notice of disagreement filed in May 2013. Thereafter, the issue was remanded for further development in accordance with an October 2018 Joint Motion for Partial Remand (JMPR), issued by the United States Court of Appeals for Veterans Claims (CAVC) and implemented by a March 2019 Board decision. In a supplemental argument, dated the same month, the Veteran's counsel suggested that a referred for consideration of a TDIU on an extra-schedular basis was warranted. The contention noted that a recent VA opinion documented the Veteran's lay assertions that his back disorder impairs his ability to work. Review of the record indicates that the Veteran has been afforded multiple VA examinations. Most recently, in August 2021, a VA examination of the thoracolumbar spine examination, documented the Veteran's complaints of chronic and severe pain, limited range of motion, and muscle spasms that impair his ability to work. Due to the noted symptoms, he suffers from an unsteady gait, poor posture, and restricted mobility that requires him to use a cane or walker on a near constant basis. During a VA examination for sinusitis, rhinitis and other upper respiratory conditions, dated November 2020, the Veteran's allergic rhinitis and acute sinusitis were found to have a minimal impact on his ability to work. VA examinations in March 2019, indicated that the Veteran's left shoulder disability limits his ability to reach or lift above shoulder height. An evaluation for intestinal conditions, dated the same month, indicated that the Veteran's intestinal condition impacts his ability to work as episodes of fecal urgency require quick access to the restroom. In making all determinations, the Board has fully considered the evidence of record, to include the Veteran's lay statements as to the current severity of his service-connected disabilities. In multiple lay statements, the Veteran indicated that his lumbar spine, shoulder, and gastrointestinal conditions limit is ability to perform physical or sedentary labor. He further states that he has been unable to work since 2012. Generally, lay persons can attest to factual matters for which they have first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). While the Veteran is competent to report on his symptoms and their severity, he is not deemed competent to render a medical opinion in the absence of the appropriate expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). In this case, the Veteran reported persistent limitations due to his service-connected disabilities, and the Board acknowledges his statement as competent and of some probative value. In this case, the VA examiners have conducted extensive diagnostic testing and physical examinations, coupled with a review of the medical evidence, in order to assess the true extent of the Veteran's occupational limitations. Other treatment records show that an occupational therapist's evaluation was conducted in July 2018 to determine the extent of his mobility challenges and determine the need for accessibility equipment around his home. Skilled services and adaptive equipment were recommended. Additional treatment for the Veteran's lumbar spine disability includes oral medications, acupuncture, epidural injections, and chiropractic care. Based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board finds that his service-connected disabilities rendered him unable to secure and maintain substantially gainful employment. Although the Board recognizes that the Veteran's lumbar spine condition has been evaluated as 40 percent disabling, however, his functional limitations suggest that he would be incapable to perform the physical requirements needed to maintain any occupation, to include a sedentary form of employment. Accordingly, the Board finds that the Veteran's service-connected disabilities, to include his service-connected lumbar spine condition, impairs his ability to secure and maintain substantially gainful employment. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for TDIU have been met. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.