Citation Nr: 21076769 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-44 519 DATE: December 27, 2021 ORDER 1. Entitlement to an effective date of June 17, 2016, for the grant of service connection for left lower extremity radiculopathy is granted. 2. Entitlement to an effective date of June 17, 2016, for the grant of service connection for right lower extremity radiculopathy is granted. 3. Entitlement to a rating in excess of 10 percent prior to January 25, 2018, and in excess of 20 percent from that date, for a cervical spine disability is denied. 4. Entitlement to a rating in excess of 10 percent for 14 degrees of scoliosis at L3 with degenerative arthritis of the spine (lumbar spine disability) prior to January 25, 2018, is denied. 5. Entitlement to a 20 percent rating for a lumbar spine disability from January 25, 2018, to July 1, 2020, is granted. 6. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is denied. 7. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. 8. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. On June 17, 2016, the Veteran was diagnosed with bilateral lower extremity radiculopathy, which was within one year of his intent to file an increased rating claim for a lumbar spine disability. 2. Prior to January 25, 2018, The Veteran's cervical spine disability was not shown to have been manifested by flexion limited to 30 degrees or less, combined range of motion of 170 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or ankylosis of the spine; incapacitating episodes of cervical disc disease or neurological manifestations were not shown. 3. From January 25, 2018, The Veteran's cervical spine disability is not shown to have been manifested by flexion limited to 15 degrees or less or ankylosis of the spine; incapacitating episodes of cervical disc disease or neurological manifestations are not shown. 4. Prior to January 25, 2018, the Veteran's lumbar spine disability was not shown to have been manifested by flexion limited to 60 degrees or less, combined range of motion of 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or ankylosis of the spine; incapacitating episodes of thoracolumbar disc disease, or neurological manifestations other than bilateral lower extremity radiculopathy were not shown. 5. From January 25, 2018 to July 1, 2020, the Veteran's lumbar spine disability was manifested by flexion limited to 40 degrees; ankylosis, incapacitating episodes of thoracolumbar disc disease, or neurological manifestations other than bilateral lower extremity radiculopathy were not shown. 6. The Veteran's bilateral lower extremity radiculopathy was most appropriately characterized as mild incomplete paralysis; moderate incomplete paralysis was not shown. 7. On September 25, 2016, the Veteran filed a claim for a TDIU, and his service-connected disabilities are shown to preclude him from obtaining or maintaining substantially gainful employment as of that date. CONCLUSIONS OF LAW 1. An effective date of June 17, 2016, for the grant of service connection for left lower extremity radiculopathy is warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. 2. An effective date of June 17, 2016, for the grant of service connection for right lower extremity radiculopathy is warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. 3. A rating in excess of 10 percent prior to January 25, 2018, and in excess of 20 percent from that date, for a cervical spine disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5242. 4. Prior to January 25, 2018, a rating in excess of 10 percent for a lumbar spine disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Code 5243. 5. From January 25, 2018, to July 1, 2020, a 20 percent rating for a lumbar spine disability is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Code 5243. 6. An initial rating in excess of 10 percent for left lower extremity radiculopathy is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Code 8520. 7. An initial rating in excess of 10 percent for right lower extremity radiculopathy is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Code 8520. 8. A TDIU is warranted. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active service from May 1994 to May 1998, September 2001 to December 2007, and January 2008 to November 2014. This case is before the Board of Veterans' Appeals (Board) on appeal from May 2017 and August 2017 Department of Veterans Affairs (VA) rating decisions. The May 2017 rating decision continued the assigned 10 percent rating for the Veteran's cervical spine disability and denied entitlement to a TDIU. The August 2017 rating decision continued the assigned 10 percent rating for the Veteran's lumbar spine disability and granted service connection for bilateral lower extremity radiculopathy. In September 2017, the Veteran filed his notice of disagreement with the May 2017 rating decision. In October 2017, the Veteran filed his notice of disagreement with the August 2017 rating decision. A February 2018 rating decision granted an increased rating of 20 percent effective January 25, 2018, for the Veteran's cervical spine disability. In February 2018, a statement of the case (SOC) was issued regarding the Veteran's cervical spine disability. The Veteran submitted his substantive appeal in March 2018. A March 2018, a SOC was issued regarding the Veteran's claim for a TDIU. The Veteran submitted his substantive appeal in March 2018. In October 2019, the Board remanded the increased rating claim for a cervical spine disability and the claim for a TDIU for further development. In April 2020, an SOC was issued regarding the effective dates assigned for the grant of service connection for bilateral lower extremity radiculopathy and the increased rating claims for a lumbar spine disability and bilateral lower extremity radiculopathy. The Veteran filed his substantive appeal in May 2020. In a November 2017 rating decision, the agency of original jurisdiction (AOJ) found that there was clear and unmistakable error in the grant of service connection for a lumbar spine disability and bilateral lower extremity radiculopathy, and the AOJ proposed to sever these disabilities. The Veteran did not file a notice of disagreement with this decision but did submit a request for a hearing in January 2018. An April 2020 rating decision severed service connection for a lumbar spine disability and bilateral lower extremity radiculopathy effective July 1, 2020. In the May 2020 VA Form 9, the Veteran's attorney raised the matter of restoration of the Veteran's lumbar spine disability and bilateral lower extremity radiculopathy as the Veteran was not granted the requested hearing. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The implementation date for AMA was February 19, 2019. Under the AMA, an appeal can be perfected simply by submitting a notice of disagreement using the appropriate form, VA Form 10182, directly to the Board. As the implementation date for the AMA was February 19, 2019, the AMA applies to the April 2020 rating decision. However, the Veteran did not submit a notice of disagreement, and as such, the issues regarding restoration of the severed disabilities are not presently before the Board at this time. Effective Dates On June 29, 2016, the Veteran submitted an intent to file a claim for VA compensation. On September 25, 2016, he filed an increased rating claim for his lumbar spine disability. Adjudicating that claim, an August 2017 rating decision granted service connection for bilateral lower extremity radiculopathy, effective June 29, 2016, the date an intent to file a claim was received by VA. In the Veteran's October 2017 notice of disagreement, he indicated that he was entitled to earlier effective dates for the grants of service connection. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date, otherwise the date the claim was received. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). A review of the record shows that the Veteran was granted service connection for a lumbar spine disability by an April 2014 rating decision. On May 2014 VA examination, the Veteran did not have a diagnosis of lower extremity radiculopathy. He was first diagnosed with bilateral lower extremity radiculopathy on June 17, 2016. The effective date will be the date the claim was received, unless it is factually ascertainable that an increase in disability occurred within one year prior to such date. A review of the record found that bilateral lower extremity radiculopathy was first clinically noted/diagnosed on June 17, 2016, which represented a worsening of the Veteran's lumbar spine disability. As such, entitlement to separate ratings for radiculopathy arose on that day. As the record does not reflect a diagnosis of bilateral lower extremity radiculopathy prior to June 17, 2016, an effective date prior to this date cannot be assigned. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, the Veteran's claims for earlier effective dates for the grant of service connection for left lower extremity radiculopathy and right lower extremity radiculopathy are granted as of June 17, 2016, the date objective medical findings were consistent with left lower extremity radiculopathy and right lower extremity radiculopathy. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. Spine Disabilities Neck and back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in a higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Code 5243, Note (1). Under the General Rating Formula, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; if forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees or the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is vertebral body fracture with loss of 50 percent or more of the heigh. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; if forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine is not greater than 170 degrees; or if there is 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 30 percent evaluation is warranted if forward flexion of the cervical spine is 15 degrees or less or for favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less, for unfavorable ankylosis of the entire cervical spine, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation 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. The Board notes that, effective February 7, 2021, the criteria for evaluating musculoskeletal disorders were amended. As relevant to this decision, the amended rating criteria limit the types of neck disorders entitled to consideration under the alternative diagnostic criteria for intervertebral disc syndrome but did not otherwise amend the substance of the IVDS alternative criteria. Specifically, the amended regulation specifies that only disc herniation with compression and/or irritation of the adjacent nerve root qualifies as IVDS; otherwise, the neck disorder is rated under Code 5242. Since the prior version of the diagnostic criteria, which are less restrictive in the types of neck disorders that qualify for consideration of the IVDS criteria, are more favorable to the Veteran, those former criteria will be applied in this case. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. Id. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Cervical Spine Disability The Veteran asserted that he was entitled to a higher rating for his cervical spine disability. The Veteran's cervical spine disability is rated 10 percent prior to January 25, 2018, and 20 percent from that date, under Code 5242 for cervical spine degenerative arthritis. The evidence of record does not show that the Veteran has experienced incapacitating episodes of IVDS due to his cervical spine disability. The October 2016, January 2018, and August 2019 VA examiners indicated that the Veteran did not have IVDS. There is no evidence in the record showing that bed rest has been prescribed to treat the Veteran's cervical spine disability. Thus, the analysis turns (and is limited to) whether ratings in excess of those assigned are warranted under the General Formula and whether a separate rating is warranted for neurological manifestations. The Veteran's medical records show treatment for cervical spine symptoms, but do not show findings consistent with higher ratings. On October 2016 VA examination, the Veteran reported having chronic neck pain. He reported having flare-ups that resulted in popping and soreness with pain radiating into his left shoulder. He denied having any functional loss. On examination, flexion was to 40 degrees, extension was to 35 degrees, left and right lateral flexion were to 35 degrees, and left and right lateral rotation were to 45 degrees. The examiner indicated that pain was noted on examination but did not result in or cause functional loss, and that the Veteran's range of motion found did not contribute to a functional loss. There was no evidence of pain with weight bearing but there was pain with non-weight bearing. The examiner reported there was mild tenderness to the cervical spine and bilateral paraspinals. The examiner reported that repetitive use testing did not result in additional functional loss or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The examiner indicated that the Veteran did not have guarding or muscle spasm of the cervical spine. He retained normal (5/5) upper extremity strength, normal reflexes, and normal sensation. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner indicated that there were no additional contributing factors of disability. The examiner indicated that there was no muscle atrophy or ankylosis. On January 2018 VA examination, the Veteran reported having flare-ups with sleeping, driving, and watching television. He denied having functional loss. On examination, flexion was to 30 degrees. The examiner indicated that pain was noted on examination but did not result in or cause functional loss, and that the Veteran's range of motion found did not contribute to a functional loss. There was evidence of pain with weight bearing. There was pain to palpation along the cervical spine. The examiner reported that repetitive use testing did not result in additional functional loss or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. He retained normal (5/5) upper extremity strength, normal reflexes, and normal sensation. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner indicated that there were no additional contributing factors of disability. The examiner indicated that there was no muscle atrophy or ankylosis. On August 2019 VA examination, the Veteran reported having pain that radiated into his arms with weakness. He reported having flare-ups with prolonged usage such as driving. He denied having any functional loss. On examination, flexion was to 30 degrees. The examiner indicated that pain was noted on examination but did not result in or cause functional loss, and that the Veteran's range of motion found did not contribute to a functional loss. There was evidence of pain with weight bearing and non-weight bearing. The examiner reported that repetitive use testing did not result in additional functional loss or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. He retained normal (5/5) upper extremity strength, normal reflexes, and normal sensation. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The examiner indicated that there were no additional contributing factors of disability. The examiner indicated that there was no muscle atrophy or ankylosis. Regarding neurological manifestations, the Veteran's medical records do not show bowel or bladder incontinence or a diagnosis of radiculopathy. Despite the Veteran's complaints of radiating cervical spine pain, the October 2016, January 2018, and August 2019 VA examiners indicated that the Veteran did not have a history of bowel or bladder incontinence or have cervical spine radiculopathy. Prior to January 25, 2018, the pertinent evidence is summarized above. No examination during the period for consideration found limitation of cervical flexion to 30 degrees or less or a combined range of motion to 170 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, which would warrant a 20 percent rating. The medical records show that his cervical spine forward flexion was limited, at most, to 40 degrees, even considering such factors as repetitive use and severity during flare-ups. Ankylosis of the spine was not shown (and has not been specifically alleged). Furthermore, no neurological manifestations were shown. From January 25, 2018, the pertinent evidence is summarized above. No examination during the period for consideration found limitation of cervical flexion to 15 degrees or less, which would warrant a 30 percent rating. The medical records show that his cervical spine forward flexion was limited, at most, to 30 degrees, even considering such factors as repetitive use and severity during flare-ups. Ankylosis of the spine was not shown (and has not been specifically alleged). Furthermore, no neurological manifestations were shown. The Board has considered whether a higher rating may be warranted based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. The October 2016, January 2018, and August 2019 VA examiners reported that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The Veteran's treatment records do not show functional limitation warranting ratings in excess of those assigned. Accordingly, a rating in excess of 10 percent prior to January 25, 2018, and in excess of 20 percent from that date, based on functional limitations due to such factors is not warranted. While the Veteran has been shown to experience neck pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, of itself it does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," to constitute functional loss warranting an increased rating. Here, such is not shown. see 38 C.F.R. § 4.40. The Board has no reason to question the Veteran's reports that his cervical spine disability results in pain that limits physical activities, such as sleeping, driving, and watching television. Such limitations are contemplated by the criteria for the ratings that have been assigned. The Board also finds that the cervical spine symptoms and impairment shown do not include any that are not adequately addressed by the schedular rating criteria. The disability picture presented is not shown (nor alleged) to be exceptional, so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent prior to January 25, 2018, and in excess of 20 percent from that date, for the Veteran's cervical spine disability. Accordingly, the appeal in this matter must be denied. Lumbar Spine Disability The Veteran asserted that he was entitled to a higher rating for his lumbar spine disability. The Veteran's lumbar spine disability was rated 10 percent under Code 5243 for IVDS. The evidence of record does not show that the Veteran has experienced incapacitating episodes of IVDS due to his lumbar spine disability. The October 2016 VA examiner indicated that the Veteran had IVDS, but his IVDS did not result in any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician during the previous 12 months. The January 2018 VA examiner indicated that the Veteran did not have IVDS. There is no evidence in the record showing that bed rest was prescribed to treat the Veteran's lumbar spine disability. Thus, the analysis turns (and is limited to) whether a rating in excess of 10 percent was warranted under the General Formula and whether a further separate rating was warranted for neurological manifestations (other than bilateral lower extremity radiculopathy). The Veteran's medical records show that he received treatment for his lumbar spine disability, but do not show findings consistent with a rating in excess of 10 percent. Regarding neurological manifestations, bilateral lower extremity radiculopathy was service connected (and separately rated as discussed below). The Veteran's medical records do not show bowel or bladder incontinence. On October 2016 and January 2018 VA spine examinations, the Veteran denied having incontinence. Therefore, the record does not show any additional neurological manifestations of the lumbar spine disability (that would warrant another separate rating). On October 2016 VA examination, the Veteran reported having flare-ups depending on the activity. He denied having any functional loss. On examination, forward flexion was to 70 degrees, extension was to 20 degrees, left and right lateral flexion were to 20 degrees, and left and right lateral rotation were to 20 degrees. The examiner indicated that pain was noted on examination but did not result in or cause functional loss, and that the Veteran's range of motion found did not contribute to a functional loss. There was evidence of pain with weight bearing and non-weight bearing. There was mild pain to palpation to the lumbar spine. The examiner reported that repetitive use testing did not result in additional functional loss or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The examiner indicated that the Veteran did not have guarding or muscle spasm. He retained normal (5/5) lower extremity strength, normal reflexes, and normal sensation. The examiner indicated that there were no additional contributing factors of disability. The examiner indicated that there was no muscle atrophy or ankylosis. On January 2018 VA examination, the Veteran reported having flare-ups with standing and walking. He denied having any functional loss. On examination, forward flexion was to 40 degrees, extension was to 15 degrees, left and right lateral flexion were to 20 degrees, and left and right lateral rotation were to 20 degrees. The examiner indicated that pain was noted on examination but did not result in or cause functional loss, and that the Veteran's range of motion found did not contribute to a functional loss. There was evidence of pain with weight bearing and non-weight bearing. There was mild pain to palpation to the lumbar spine. The examiner reported that repetitive use testing did not result in additional functional loss or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The examiner indicated that the Veteran did not have guarding or muscle spasm. He retained reduced (4/5) lower extremity strength but for normal (5/5) right knee extension strength, normal reflexes, and normal sensation but for decreased sensation in the feet/toes. The examiner indicated that there were no additional contributing factors of disability. The examiner indicated that there was no muscle atrophy or ankylosis. Prior to January 25, 2018, the pertinent evidence is summarized above. No examination during the period for consideration found limitation of lumbar spine flexion to 60 degrees or less or a combined range of motion of 120 degrees or less, or muscle spasm or guarding sever enough to result in an abnormal gait or abnormal spinal contour, which would warrant a 20 percent rating. The medical records show that his lumbar spine forward flexion was limited, at most, to 70 degrees, even considering such factors as repetitive use and severity during flare-ups. Ankylosis of the spine was not shown (and has not been specifically alleged). Furthermore, no additional (to bilateral lower extremity radiculopathy) neurological manifestations are shown. From January 25, 2018, to July 1, 2020, the Veteran's lumbar spine flexion was limited to 40 degrees, consistent with a 20 percent rating. However, no examination during the period for consideration found limitation of lumbar spine flexion to 30 degrees or less or ankylosis, which would warrant a 40 percent rating. Furthermore, no additional (to bilateral lower extremity radiculopathy) neurological manifestations were shown. The Board has considered whether higher ratings may have been warranted based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. The October 2016 and January 2018 VA examiners reported that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The Veteran's treatment records do not show functional limitation warranting ratings in excess of those assigned. Accordingly, a rating in excess of 10 percent prior to January 25, 2018, and in excess of 20 percent from January 25, 2018, to July 1, 2020, based on functional limitations due to such factors is not warranted. While the Veteran was shown to experience back pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, of itself it does not constitute functional loss. Mitchell, 25 Vet. App. 32, 36-38. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," to constitute functional loss warranting an increased rating. Here, such is not shown. See 38 C.F.R. § 4.40. The Board has no reason to question the Veteran's reports that his lumbar spine disability resulted in pain that limited physical activities, such as standing and walking. Such limitations are contemplated by the criteria for the ratings that have been assigned. The Board also finds that the lumbar spine symptoms and impairment shown do not include any that are not adequately addressed by the schedular rating criteria. The disability picture presented was not shown (nor alleged) to be exceptional, so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent prior to January 25, 2018. However, from January 25, 2018, to July 1, 2020, the Veteran was entitled to a 20 percent rating for his lumbar spine disability. Bilateral Lower Extremity Radiculopathy The Veteran asserted that he was entitled to a higher initial rating for his bilateral lower extremity radiculopathy. The Veteran's bilateral lower extremity radiculopathy was rated under Code 8520, which evaluates paralysis of the sciatic nerve. Mild incomplete paralysis of the affected nerve is rated 10 percent disabling, moderate incomplete paralysis of the affected nerve is rated 20 percent disabling, moderately severe incomplete paralysis of the affected nerve is rated 40 percent disabling, severe incomplete paralysis of the affected nerve with marked muscular atrophy is rated 60 percent disabling, and complete paralysis of the affected nerve is rated 80 percent disabling. 38 C.F.R. § 4.124a, Code 8520. The words "mild," "moderate," "moderately severe," and "severe" as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The Veteran's treatment records do not contain findings consistent with higher ratings. He was diagnosed with bilateral lower extremity radiculopathy on June 17, 2016 On October 2016 VA examination, the Veteran reported having shooting pain that radiated into his lower extremities. After conducting an examination, the examiner indicated that the Veteran had mild bilateral lower extremity radiculopathy. On January 2018 VA examination, the Veteran reported that his lumbar spine pain radiated into his bilateral lower extremities. After conducting an examination, the examiner indicated that while the Veteran had decreased sensation in his feet/toes, he did not have radicular pain or any other signs or symptoms due to radiculopathy. Applying the regulations to the facts in the case, the October 2016 VA examiner indicated that the Veteran had mild bilateral lower extremity radiculopathy. The later January 2018 VA examiner found that the Veteran did not have radiculopathy but indicated he had decreased sensation in his feet/toes. Therefore, the criteria for an initial rating in excess of 10 percent for the Veteran's left lower extremity radiculopathy and right lower extremity radiculopathy have not been met. The Board has no reason to question the Veteran's reports that his lumbar spine disability results in radiating pain into his bilateral lower extremities. Such limitations are contemplated by the criteria for the ratings that have been assigned. The Board also finds that the bilateral lower extremity radiculopathy symptoms and impairment shown do not include any that are not adequately addressed by the schedular rating criteria. The disability picture presented is not shown (nor alleged) to be exceptional, so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim for initial ratings in excess of 10 percent for the Veteran's bilateral lower extremity radiculopathy. Accordingly, the appeal in these matters must be denied. TDIU Total disability will be considered to exist 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), the veteran still may receive a TDIU on an extraschedular basis if it is determined that the veteran is unable to secure or follow a substantially gainful occupation by reason of the service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. On his September 2016 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that his service-connected disabilities prevented him from securing or following a substantially gainful occupation. He reported that he last worked in November 2014 in the National Guard. He indicated that he had four years of college education. The Veteran met the schedular requirements for a TDIU as of November 28, 2014, as he had a single disability rated at 40 percent or more (obstructive sleep apnea rated at 50 percent) and had a combined disability rating of at least 70 percent (obstructive sleep apnea rated at 50 percent, a cervical spine disability rated at 10 percent prior to January 25, 2018, and 20 percent from that date, a lumbar spine disability rated at 10 percent prior to January 25, 2018, and 20 percent from that date through July 1, 2020, left lower extremity radiculopathy rated at 10 percent from June 17, 2016, to July 1, 2020, right lower extremity radiculopathy rated at 10 percent from June 17, 2016, to July 1, 2020, a left shoulder disability rated at 10 percent prior to September 25, 2016, and 20 percent from that date, a left knee disability rated at 10 percent, left elbow neuropathy rated at 10 percent, and tinnitus rated at 10 percent, in addition to a number of disabilities rated at a noncompensable rate including a left elbow disability, a left thigh disability, a right hip disability, a left ankle disability plantar fasciitis, dry eye syndrome, allergic rhinitis, hypertension, gastroesophageal reflux disease, spermatocele, a left elbow scar, a left knee scar, and an epidermal cyst). The Veteran's records contain a Social Security Physical Medical Source Statement completed by the Veteran's physician submitted in August 2018 that indicated the Veteran's symptoms from his lumbar spine disability, left knee disability, and left shoulder disability would interfere to the extent that the Veteran was unable to maintain persistence and pace to engage in competitive employment. In February 2018, a Social Security Administration (SSA) administrative law judge found that the Veteran was entitled to SSA disability benefits due to severe impairments from his left elbow neuropathy, left knee disability, and lumbar spine disability (which are service-connected disabilities for VA purposes). At a SSA hearing, a vocational expert testified that due to complications from a combination of the Veteran's severe impairments, the Veteran would regularly and consistently be off task in excess of 10 percent of the workday and that there were no jobs in the national economy that the Veteran could perform. The October 2016 VA examiner indicated that the Veteran's cervical spine disability, lumbar spine disability, and left shoulder disability did not impact the Veteran's ability to perform any type of occupational tasks, she indicated that the Veteran's left knee did impact his ability to perform occupational tasks but did not describe the functional impairment. In a March 2017 addendum opinion, the examiner reported that the Veteran's lumbar spine disability with bilateral lower extremity radiculopathy would result in minor functional limitations, but would not preclude "sedentary" activities. A March 2017 VA examiner indicated that the Veteran's left elbow neuropathy did not impact the Veteran's ability to perform any type of occupational tasks. A January 2018 VA examiner indicated that the Veteran's cervical spine disability, lumbar spine disability, left shoulder disability, left knee disability resulted in him being unable to sit, stand, or weightbearing more than two hours and limited his lifting to no more than 50 pounds. The examiner recommended a "sedentary" position. In August 2019, the same VA examiner reported the functional impact of the Veteran's cervical spine disability had not changed. While the SSA decision that granted SSA disability benefits is not controlling on VA determinations, the testimony of the vocational expert at the SSA hearing is credible and competent evidence that can be considered. The opinion of the SSA vocational expert is given great probative weight as he considered the Veteran's musculoskeletal impairments in combination, and the effects of pain, would result in the Veteran being off task 10 percent of the workday, and thus, be unable to perform substantial gainful activity. In addition, the Veteran's physician reported that the Veteran's symptoms from his lumbar spine disability, left knee disability, and left shoulder disability would interfere to the extent that the Veteran was unable to maintain persistence and pace to engage in competitive employment. When this is done, the Board concludes that the evidence for and against a TDIU is at least in approximate balance. Given this conclusion, the Board will resolve remaining reasonable doubt in the Veteran's favor, as required (see 38 C.F.R. § 4.3). Accordingly, a TDIU rating is warranted. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.