Citation Nr: 21076595 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 12-06 186 DATE: December 27, 2021 ORDER Entitlement to a 20 percent rating for chronic lumbosacral strain (back disability), effective June 3, 2009, is granted; however, a rating in excess of 40 percent since August 10, 2018 is denied. Entitlement to an earlier effective date of June 3, 2009 for an initial 10 percent rating for radiculopathy of the left lower extremity is granted. Entitlement to an earlier effective date than of July 1, 2011, for an initial 10 percent rating for radiculopathy of the right lower extremity is granted. Entitlement to an earlier effective date than August 10, 2018 for entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the period between June 3, 2009 and August 10, 2018, the Veteran's back disability manifested in reduced forward flexion of the lumbar spine, but not to 20 degrees or less or favorable ankylosis. 2. Since August 10, 2018, the Veteran's back condition manifested in reduced forward flexion of the lumbar spine to 20 degrees or less, but without unfavorable ankylosis or the functional equivalent thereto. 3. Since June 3, 2009, the Veteran has experienced mild incomplete paralysis of his left lower extremity. 4. Since July 1, 2011, the evidence supports the presence of mild radiculopathy of the right lower extremity (sural nerve) as linked to the Veteran's service-connected back disability. 5. The probative evidence of record does not demonstrate that prior to August 10, 2018, the Veteran's service-connected disabilities prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience. Further, prior to this date, the probative evidence of record demonstrates that the Veteran was engaging in substantial gainful employment and not working in a protected environment or earning a marginal wage. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a back condition have been met between June 3, 2009 and August 10, 2018. 2. Since August 10, 2018, the criteria for a rating in excess of 40 percent for a back condition have not been. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243. 3. The criteria for an initial rating of 10 percent for radiculopathy of the left lower extremity have been met effective June 3, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial rating of 10 percent for radiculopathy of the right lower extremity have been met effective July 1, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Code 8522. 5. The criteria for entitlement to a TDIU have not been met prior to August 10, 2018. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1990 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran appeared and testified at a hearing in June 2014 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In September 2014, August 2016, and May 2018 the Board remanded the Veteran's claims for additional development. The claims have returned to the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Staged ratings as indicated herein are warranted. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). During the pendency of this appeal, VA amended the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5262), effective from February 7, 2021. None of the regulatory changes are relevant to the issues in this appeal. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). 1. Back disability The Veteran contends that his back disability has continued to be worse than the ratings reflect. He complains of constant pain and a limited ability to sit, stand, and walk. The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. As discussed above, because there is no evidence of incapacitating episodes, (i.e., physician-prescribed bed rest), the Veteran's disability will be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under that formula, 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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. These are discussed in the next section of this decision. In addition to the general criteria for increased ratings claims, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Evidence The Veteran applied for an increased rating for his back disability June 3, 2009. Records from March 2009 reference a fall from a horse the previous year and imaging was ordered to determine any abnormalities. While it is not explicitly stated, the Board finds that this fall is the reason the Veteran asserted his back pain worsened and continued to seek treatment. There is no other acute injury or complaint from which a worsening appeared to occur. The Veteran's first VA examination in connection with his claim for an increase came in June 2009. He reported pain in his low back that traveled down both hips and into both legs. He had severe pain and weakness at least once a month, lasting 3-4 days and moderate associated weakness. He reported flare-ups of pain during which his lifting was limited and he would miss days of work. Atrophy of the bilateral paravertebral muscles of the lumbar spine was evident, with tenderness upon palpation. His initial lumbar forward flexion was 40 degrees, limited by pain. Relevant to this examination, the Veteran had a CT scan in September 2010 which noted "left L3 and L4 transverse processes and Broad-based disk bulges of varying degrees at all imaged levels of the lumbar spine." Other standard X-ray imaging did not find any abnormalities. Thus, the Board finds that the probative evidence of record establishes that the Veteran sustained a fall prior to his application which resulted in fractures and disk bulges in his lumbar spine. As a result of this fracture, the atrophy process started in his lumbar spine and his range of motion was limited to 40 degrees of forward flexion. The Veteran attended several other VA examinations from the date of his application until the March 2015 VA examination that was the basis for an increased rating of 20 percent. (October 2009, November 2011, and December 2011). However, the Board finds these examinations to be less probative because they do not appear to be as full and complete as the June 2009 examination. The same contract provider who performed the June 2009 examination performed an examination in July 2011. Lumbar forward flexion was 0-49 degrees, but flare-ups were not evaluated. Thus, the Board gives more weight to the contract examinations than the VA examinations. The March 2015 VA examiner did not find range of motion as limited as before, but did find that the Veteran's gait was altered due to his back disability. Thus, the criteria for a 20 percent rating were met as of the date of the exam. As found by the September 2021 examiner, an August 10, 2018 MRI demonstrated lumbar degeneration with evidence of atrophy. The September 2021 VA examiner found the Veteran's range of motion was limited to less than 20 degrees forward flexion, but did not assess when that limitation started. The range of motion was even more limited during flares. The Board has considered the remainder of the medical record. While there are many reports of back pain the record, there is little in the way of meaningful range of motion testing. Analysis Given the above, the Board finds the criteria for a 20 percent rating to be approximated effective June 3, 2009, the date of the Veteran's application for an increase. The Veteran fell from a horse and the probative evidence of record demonstrates that this fall likely fractured his spine and caused muscle bulging and worsening pain. The Veteran presented to an examination in June 2009 wherein his range of motion was limited to 40 degrees of forward flexion and some atrophy of his bilateral paravertebral muscles of the lumbar spine was evident. Between June 3, 2009 and August 10, 2018, the Veteran's condition worsened, but not to the point where flexion in the lumbar spine was limited to 20 degrees of less. It was not until the September 2021 VA examination that the Veteran's forward flexion was noted to be at 20 degrees or less. Thus, the criteria for a 40 percent rating was met effective August 10, 2018, but no earlier. The Board recognizes that the AOJ associated the finding of atrophy with a 40 percent rating. Even though atrophy was evident prior, the decreased range of motion was not. To warrant a rating in excess of 20 percent prior to August 10, 2018 and in excess of 40 percent thereafter, ankylosis of the functional equivalent thereto must be approximated. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Ankylosis can also mean the "functional equivalent" of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). However, even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate fixation of a spinal segment in neutral position (zero degrees). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Aside from the September 2021 VA examiner, the examiners did not assess additional range of motion lost during flare-ups or after repeated use. However, the Board considered the Veteran's complaints and found the Veteran's range of motion and symptomology to be equivalent to 40 degrees of lumbar flexion, despite many examinations finding only slightly diminished flexion. However, the Board does not find that prior to August 10, 2018, the Veteran's symptomology would approximate 20 degrees or less of forward flexion or favorable ankylosis. Thus, the evidence does not show that even during flare-ups, the Veteran's range of motion or symptomology would approximate a greater degree of range of motion lost. While the Veteran reported pain and some functional loss, flareups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flareups must be of such length as to establish that the overall impairment is more severe than currently evaluated. In this instance, the Veteran's statements made in this case do not show that any flareups or repeated use over time have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a higher rating would be warranted, above what the Board has already found. The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's general reports of pain and limitation of function. Despite the Veteran's contention of a greater degree of limitation on his back condition, the disability ratings assigned herein indicate a significant impact on his functional ability. Such disability evaluations assigned by VA recognizes his painful motion. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not. For the foregoing reasons, the evidence supports a 20 percent rating for the Veteran's back disability between June 3, 2009 and August 10, 2018. A rating in excess of 40 percent is not warranted after August 10, 2018. The benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Radiculopathy of the left lower extremity; and, 3. Radiculopathy of the right lower extremity Through a November 2020 rating decision, the Veteran was assigned 10 percent ratings for radiculopathy of the sciatic nerves of his bilateral lower extremities, each effective August 10, 2018. As explained above, in addition to the back ratings, the schedule directs that any associated objective neurological abnormalities, such as radiculopathy, are to be evaluated separately under an appropriate diagnostic code. See "General Rating for Diseases and Injuries of the Spine, at Note 1. Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. The Veteran's sciatic radiculopathy of the bilateral lower extremities is rated under Diagnostic Code 8520 for paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted where there is moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is for application where there is complete paralysis of the sciatic nerve (i.e., the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Analysis At the Veteran's June 18, 2009 VA examination, the Veteran reported pain in his low back that traveled down both hips and into both legs. The examiner noted a positive straight leg raise on the left and decreased sensory function in the left lower extremity. The examiner assessed sciatic neuritis but did not provide a relative severity. The Veteran's VA medical records contain a diagnosis of sciatica in the left lower extremity effective September 1, 2010. At the Veteran's July 2011 VA examination, the Veteran complained of greater symptomology on the right than the left. He had a positive straight leg raise on the right, but not the left. He had someone diminished sensation related to his right foot and the examiner assessed sural radiculopathy. At the Veteran's February 2019 VA examination, the clinician found mild sciatic radiculopathy of the bilateral lower extremities. In support, the clinician noted symmetric, bilateral loss of strength, slightly decreased reflexes, severe constant pain, and moderate intermittent pain. The clinician also found moderate numbness in the left lower extremity. At the Veteran's September 2021 VA examination, the clinician found sciatic radiculopathy of the bilateral lower extremities, but did not assess a severity. The objective and subjective findings were less severe than found in the February 2019 VA examination. The AOJ found mild sciatic radiculopathy to be present based on the August 10, 2018 MRI findings. In that VA record, only radiculopathy of the left lower extremity was addressed. Analysis After considering the above, the Board finds that sural radiculopathy of the right lower extremity was diagnosed on examination on July 1, 2011, as due to the service-connected back disability. As of the February 2019 VA examination, the sural radiculopathy was recharacterized as sciatic radiculopathy. Regardless, the disability has affected the nerves of the Veteran's right lower extremity and has been linked to the service-connected back disability. Therefore, an initial rating is warranted as of the first evidence of such radiculopathy the date of the exam on which it was first diagnosed. Therefore, an earlier effective date is granted. As for the left lower extremity, the June 2009 VA examination found radiculopathy of the left lower extremity, but did not assess a severity. This examination comes two weeks after the Veteran's application; thus, the Board finds it likely that the radiculopathy existed on June 3, 2009, and a separate rating is warranted from that point on. However, the Board does not find that the neurological or other objective manifestations of the Veteran's radiculopathy to approximate moderate incomplete paralysis consistent with a 20 percent rating. The Board again notes that in assigning a severity for radiculopathy, when the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The Veteran's February 2019 VA examination contains the most severe symptomology: slightly reduced bilateral loss of strength, slightly decreased reflexes, severe constant pain, and moderate intermittent pain. The clinician also found moderate numbness in the left lower extremity. The Board has considered whether these symptoms warrant an increased 20 percent rating, but finds that they do not because less severe objective findings are found in the September 2021 record and in the Veteran's medical records. The Board does not find a greater degree of impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, pain, muscle atrophy or paralysis (i.e. objective findings) that would warrant a higher rating. Despite the Veteran's contention of a greater degree of limitation on his radiculopathy conditions, the disability ratings assigned herein indicate a significant impact on his functional ability. Such disability evaluations assigned by VA recognizes his symptoms. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not exceed those found herein. Thus, in consideration of the above, the Board finds that the Veteran's radiculopathy of the left lower extremity warrants an initial 10 percent rating effective June 3, 2009, and his right lower extremity warrants an initial 10 percent rating effective July 1, 2011. TDIU 4. Entitlement to an earlier effective date than August 10, 2018 for entitlement to a TDIU The Board took jurisdiction of the TDIU claim in its September 2014 Remand, finding that the issue was raised by the record. Thus, it has been pending since his claim for an increased rating for his back, in June 2009. Through a September 2021 rating decision, the Veteran was granted a TDIU effective August 10, 2018. The AOJ granted this rating because this was the first date the Veteran met the schedular requirements for a TDIU. Further, the AOJ found the Veteran stopped working September 3, 2017. The Veteran, through his representative, has contended that he should be awarded TDIU on an extraschedular basis. Further, that his work should not be considered substantially gainful employment, but rather that it was protected and or marginal work. Factors to be considered in determining whether unemployability exists are the Veteran's education, employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran's age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total (100 percent) disability ratings will be assigned "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a). A total disability rating may be assigned under a Diagnostic Code where the Diagnostic Code associated with a disability prescribes a 100 percent disability rating. Additionally, regulations provide other methods by which TDIU may be awarded. TDIU may be assigned to a veteran who is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities," provided that he has received a disability rating of 60 percent or greater, or if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40 percent, and the combined disability rating for all disorders is at least 70 percent. Employment The Board will first address the Veteran's contention that the work he performed was protected and or marginal work. See VBMS, document labeled Appellate Brief (VSO IHP; Post remand Brief; Attorney Brief), receipt date November 5, 2021, page 2 of 4. In support thereof, the brief argues that because the Veteran was often sent home early due to his disability and that the medicine he needed to take hampered his ability to work. Further, the representative has argued that the Veteran's sister who is a nurse has the expertise to determine work limitations as it pertains to the Veteran's disability. The record establishes that the Veteran worked at a rubber manufacturing plant. Early during the period on appeal, he changed his position because it required too much standing and it affected his back. At the hearing, he testified that he was moved to lighter duty position and stayed there until he could no longer work. The Veteran's last day of employment was September 3, 2017. Notably, the Veteran's application for a TDIU does not indicate that he lost any time from illness or his disability. However, the record indicates that the Veteran would miss several days a year due to his service-connected disabilities. Even so, the Veteran's employer stated that the Veteran missed on average five hours per week; that no concessions were made to the employee by reason of disability; and that "we all agreed" that due to pain medications and lifting requirements, it would be best to terminate employment. The Veteran had made close to $22,500.00 in the year 2017 until he stopped work. See VBMS, document labeled VA 21-4192 Request for Employment Information in Connection with Claim for Disability, receipt date August 13, 2020. Turning first to whether the work was marginal by earnings, the Veteran earned $2,500.00 a month ($22,500 divided by 9). $2,500 a month is roughly $15.00 an hour. Therefore, the Board does not find the work to be marginal. Further, even though he missed five hours a week on average, the Veteran still worked 35 hours a week which is considered full-time. Turning next to the issue of whether the work was protected or sheltered, there is no indication that the Veteran was afforded special accommodations for his work. His employer denied this and the Veteran himself has not asserted such accommodations exist. That a person switches to a physically less demanding position is not, by itself, evidence that the work is protected or sheltered. Thus, the Board finds that Veteran was engaging in substantially gainful employment until his date last worked: September 3, 2017. Schedular and Extraschedular Considerations The Veteran has been awarded a TDIU since August 10, 2018, the date after which he stopped working and the date he first met the schedular requirements for a TDIU. The Veteran asserts that he is entitled to a TDIU prior to that date: from September 3, 2017 to August 10, 2018. From September 3, 2017 to August 10, 2018, (including the earlier ratings for both lower extremities' radiculopathy granted herein), the Veteran was in receipt of the following ratings: 20 percent for his back; 20 percent for his left knee, status-post surgeries; 10 percent for a left knee scar; 10 percent for limitation of extension of his left knee; 10 percent for radiculopathy of his left leg; and 10 percent for radiculopathy of his right leg. Given these ratings, the Veteran had total rating of 60 percent. As such, the Veteran did not meet the percentage threshold requirements provided in 38 C.F.R. § 4.16 (a) for consideration of entitlement to a TDIU. However, the analysis does not end there. The Veteran asserts that he is entitled to a TDIU on an extraschedular basis because his service-connected disabilities render him factually unemployable. The Veteran's claim for an extraschedular TDIU has twice been referred to VA's Director of Compensation Service for extraschedular consideration. Memoranda dated August 2017 and November 2020 both recommended denying TDIU on such a basis. Importantly, the Veteran does not have any service-connected mental limitations, such as difficulties comprehending written or spoken instructions, difficulty concentrating, trouble with his short-or-long term memory, or any social limitations, such as difficulties with supervisors, coworkers, or the public. Further, the Veteran does not have any service-connected conditions with his upper extremities, such that he would have difficulty using his arms or hands. Given this, the Veteran's occupational profile is not limited as described above but was limited by his ability to lift, sit, stand, and walk (as well as other postural limitations). Yet, the Veteran's ability to lift lighter objects and perform work where he was seated the majority of the day (or with a sit stand option) was not similarly limited. The Board has considered the Veteran's occupational history of being a factory worker and that he does not have a college education or other technical skills, such as computer skills. Even so, there exist other factory jobs where the Veteran could perform lighter duty work and remain sitting most of the day. The Board has considered the Veteran's contentions that he is on a "heavy duty" dose of pain medication. If the Veteran were rendered so unable to function as a result of his pain medication, it is unlikely that his employer would have allowed him to continue working at his position operating machinery as it would be a safety issue. Thus, the Board does not find that the Veteran is unemployable or that his service-connected disabilities have rendered him unable to secure or follow substantially gainful employment prior to the current effective date of TDIU (August 10, 2018). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.