Citation Nr: 21076858
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 10-43 550
DATE: December 28, 2021

ORDER

An effective date of May 31, 2009, but not prior, for the award of service connection for lumbar radiculopathy, sciatic nerve of the right lower extremity, is granted.

An effective date, prior to May 31, 2009, for the award of service connection for lumbar radiculopathy, sciatic nerve of the left lower extremity, is denied.

An initial 40 percent rating, from January 30, 2009 to June 19, 2019, for chronic lumbosacral strain with intervertebral disc syndrome (IVDS) and degenerative disc disease (DDD), is granted.

An initial rating higher than 40 percent, from June 20, 2019 to the present, for chronic lumbosacral strain with IVDS and DDD, is denied.

An initial rating higher than 10 percent for lumbar radiculopathy, sciatic nerve of the right lower extremity, from May 31, 2009 to July 22, 2019, is denied.

An initial 20 percent rating for lumbar radiculopathy, sciatic nerve of the right lower extremity, from July 23, 2019 to the present, is granted.

An initial rating higher than 10 percent for lumbar radiculopathy, sciatic nerve of the left lower extremity, from May 31, 2009 to July 22, 2019, is denied.

An initial 20 percent rating for lumbar radiculopathy, sciatic nerve of the left lower extremity, from July 23, 2019 to the present, is granted.

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), from January 30, 2009 to February 5, 2018, is granted.

FINDINGS OF FACT

1. The Veteran filed a claim of service connection for spinal disorders on January 30, 2009. There was no mention of any bilateral lower extremity condition. 

2. A May 31, 2009 VA MRI report shows impingement and abutment of the bilateral L5-S1 nerve roots. 

3. For the period from January 30, 2009 to June 19, 2019, the Veteran's back disability, considering functional loss due to severe pain, at worst, most closely approximates limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; without unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

4. For the period from June 20, 2019 to the present, the Veteran's back disability, even considering functional loss due to severe pain, did not manifest with unfavorable ankylosis of the entire thoracolumbar spine or entire spine; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

5. For the period from May 31, 2009 to July 22, 2019, at worst, the Veteran's lumbar radiculopathy, sciatic nerve of the right lower extremity, manifested as mild incomplete paralysis.

6. For the period from July 23, 2019 to the present, the Veteran's lumbar radiculopathy, sciatic nerve of the right lower extremity, manifested as moderate incomplete paralysis.

7. For the period from May 31, 2009 to July 22, 2019, at worst, the Veteran's lumbar radiculopathy, sciatic nerve of the left lower extremity, manifested as mild incomplete paralysis.

8. For the period from July 23, 2019 to the present, the Veteran's lumbar radiculopathy, sciatic nerve of the left lower extremity, manifested as moderate incomplete paralysis. 

9. For the period from January 30, 2009 to February 5, 2018, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria to establish an effective date of May 31, 2009, but not earlier, for the award of service connection for lumbar radiculopathy, sciatic nerve of the right lower extremity, have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c), 3.400.

2. The criteria to establish an effective date prior to May 31, 2009, for the award of service connection for lumbar radiculopathy, sciatic nerve of the left lower extremity, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c), 3.400.

3. For the period from January 30, 2009 to June 19, 2019, the criteria for an initial 40 percent rating for chronic lumbosacral strain with IVDS and DDD, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243.

4. For the period from June 20, 2019 to the present, the criteria for an initial rating higher than 40 percent for chronic lumbosacral strain with IVDS and DDD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243.

5. For the period from May 31, 2009 to July 22, 2019, the criteria for a rating higher than 10 percent for lumbar radiculopathy, sciatic nerve of the right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.124a, DC 8520.

6. For the period from July 23, 2019 to the present, the criteria for a 20 percent rating for lumbar radiculopathy, sciatic nerve of the right lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.124a, DC 8520.

7. For the period from May 31, 2009 to July 22, 2019, the criteria for a rating higher than 10 percent for lumbar radiculopathy, sciatic nerve of the left lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.124a, DC 8520.

8. For the period from July 23, 2019 to the present, the criteria for a 20 percent rating for lumbar radiculopathy, sciatic nerve of the left lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.124a, DC 8520.

9. For the period from January 30, 2009 to February 5, 2018, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from July 2003 to May 2004.

This matter was previously before the Board of Veterans' Appeals (Board) in August 2021 when the following issues were remanded for new VA examinations: an initial rating higher than 20 percent, from January 30, 2009 to June 19, 2019, for chronic lumbosacral strain with IVDS and DDD; an initial rating higher than 40 percent, from June 20, 2019 to the present, for chronic lumbosacral strain with IVDS and DDD; an initial rating higher than 10 percent for lumbar radiculopathy, sciatic nerve of the right lower extremity; an initial rating higher than 10 percent for lumbar radiculopathy, sciatic nerve of the left lower extremity; an effective date, prior to February 6, 2018, for the award of service connection for lumbar radiculopathy, sciatic nerve of the right lower extremity; and an effective date, prior to February 6, 2018, for the award of service connection for lumbar radiculopathy, sciatic nerve of the left lower extremity. The issue of a TDIU was also remanded since resolution of the remanded issues of increased ratings and earlier effective dates may have an impact on the Veteran's claim of a TDIU.

In accordance with the August 2021 Board remand directives, in September 2021, the Veteran was provided VA examinations and medical opinions for the remanded issues. 

An October 2021 rating decision awarded an effective date of May 31, 2009, for the award of service connection for lumbar radiculopathy, sciatic nerve of the left lower extremity. However, the Veteran contends that an effective date of January 30, 2009, the date of his claim of service connection for spinal disorders, is warranted. 

Further development having been completed in accordance with the August 2021 Board remand directives; the matter is once again before the Board. 

After review of the evidence of record, the Board has determined the following:

An effective date of May 31, 2009, for the award of service connection for lumbar radiculopathy, sciatic nerve of the right lower extremity, will be granted; and an effective date, prior to May 31, 2009, for the award of service connection for lumbar radiculopathy, sciatic nerve of the left lower extremity, will be denied.

An initial 40 percent rating for service-connected chronic lumbosacral strain with IVDS and DDD, for the period from January 30, 2009 to June 19, 2019, will be granted because the evidence shows that, considering functional loss due to severe pain, at worst, the condition most closely approximated limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

An initial rating higher than 40 percent for service-connected chronic lumbosacral strain with IVDS and DDD, for the period from June 20, 2019 to the present, will be denied because the evidence shows that, even considering functional loss due to severe pain, the condition did not manifest with unfavorable ankylosis of the entire thoracolumbar spine or entire spine; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

An initial rating higher than 10 percent for lumbar radiculopathy, sciatic nerve of the right lower extremity, from May 31, 2009 to July 22, 2019, will be denied because the evidence shows that, at worst, the condition was mild in-severity. 

An initial 20 percent rating for lumbar radiculopathy, sciatic nerve of the right lower extremity, from July 23, 2019 to the present, will be granted because the evidence shows that the condition was moderate in-severity. 

An initial rating higher than 10 percent for lumbar radiculopathy, sciatic nerve of the left lower extremity, from May 31, 2009 to July 22, 2019, will be denied because the evidence shows that, at worst, the condition was mild in-severity.

An initial 20 percent rating for lumbar radiculopathy, sciatic nerve of the left lower extremity, from July 23, 2019 to the present, will be granted because the evidence shows that the condition was moderate in-severity.

For the period from January 30, 2009 to February 5, 2018, entitlement to a TDIU will be granted because the evidence shows that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation during the period.

1. An effective date of May 31, 2009, but not prior, for the award of service connection for lumbar radiculopathy, sciatic nerve of the right lower extremity, is granted. 

2. An effective date, prior to May 31, 2009, for the award of service connection for lumbar radiculopathy, sciatic nerve of the left lower extremity, is denied. 

As noted above, the October 2021 rating decision awarded an effective date of May 31, 2009, for the grant of service connection for lumbar radiculopathy, sciatic nerve of the left lower extremity. 

The Veteran contends that he is entitled to an earlier effective date of January 30, 2009 for both disabilities, the date of his claim of service connection for spinal disorders.

For the following reasons, an effective date of May 31, 2009, but not prior, for the award of service connection for lumbar radiculopathy, sciatic nerve of the right lower extremity, is warranted, and the claim is granted; and an effective date, prior to May 31, 2009, for the award of service connection for lumbar radiculopathy, sciatic nerve of the left lower extremity, is not warranted, and the claim is denied.

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a).

An April 2006 VA primary care note shows that the Veteran reported involvement in a motor vehicle accident (MVA) two weeks before and complained of neck and right-sided mid-back pain, but did not complain of radiation, numbness, or tingling to the legs or feet.

The Veteran submitted a claim of service connection for spinal disorders on January 30, 2009. 

A May 31, 2009 VA lumbar spine MRI report shows the extent of the Veteran's spine condition at the time, showing impingement and abutment of the bilateral L5-S1 nerve root. 

The September 2021 VA examiner stated that, based on history and severity of the 2009 MRI findings, 2009 is when his pain became progressively worse.

As noted above, the effective date 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(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a).

The Veteran originally submitted a claim of service connection for spinal disorders on January 30, 2009; however, there was no evidence of a bilateral lower extremity condition at the time. Instead, the evidence at the time showed no complaints of radiation, numbness, or tingling to the legs or feet. Instead, the May 31, 2009 VA MRI report is the first evidence showing impingement and abutment of the bilateral L5-S1 nerve root.

Although the evidence shows that the Veteran submitted a claim of service connection for spinal disorders on January 30, 2009, the record did not show evidence of a bilateral lower extremity condition at the time. As the May 31, 2009 VA MRI report showing impingement and abutment of the bilateral L5-S1 nerve root, is later in time in relation to the date of claim of service connection for spinal disorders, an effective date of May 31, 2009, but not prior, is warranted. 

An effective date of May 31, 2009, but not earlier, for the award of service connection for lumbar radiculopathy, sciatic nerve of the right lower extremity, is warranted, and the claim is granted; and an effective date, prior to May 31, 2009, for the award of service connection for lumbar radiculopathy, sciatic nerve of the left lower extremity, is not warranted, and the claim is denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).

When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion (ROM) measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain sets in. See VAOPGCPREC 9-98.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

Additionally, painful motion is an important factor of disability, and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 

Where a claimant has a full ROM with pain, or a noncompensable limitation of motion that is accompanied by pain, a 10 percent rating may be appropriate. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton, 25 Vet. App. at 5.

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.

3. An initial 40 percent rating, from January 30, 2009 to June 19, 2019, for chronic lumbosacral strain with IVDS and DDD, is granted. 

4. An initial rating higher than 40 percent, from June 20, 2019 to the present, for chronic lumbosacral strain with IVDS and DDD, is denied. 

The Veteran contends that his service-connected chronic lumbosacral strain with IVDS and DDD is worse than that which is contemplated by his current staged ratings of 20 percent, from January 30, 2009 to June 19, 2019, and 40 percent, from June 20, 2019 to the present, under DC 5243. The Veteran also contends that extraschedular consideration is warranted. 

For the following reasons, an initial 40 percent rating, for the period from January 30, 2009 to June 19, 2019, is warranted, and the claim is granted; and an initial rating higher than 40 percent, for the period from June 20, 2019 to the present, is not warranted, and the claim is denied. 

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (DCs 5235 to 5243), or under the Formula for Rating IVDS Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25, 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

Under the General Rating Formula, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; combined ROM 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 disability rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id.

Note 2: (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. The normal ROM (ROM) of thoracolumbar spinal motion provided in this note is the maximum that can be used for calculation of the combined ROM. Id.

Under DC 5243, a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id.

An April 2006 VA primary care note shows that the Veteran reported involvement in a MVA two weeks prior and complained of neck and right-sided mid-back pain.

A May 2009 VA lumbar spine MRI report shows multilevel degenerative changes and lumbar spondylosis with evidence of disc herniations at L4-L5 and L5-S1.

During the July 2009 VA Compensation and Pension Examination Report (C&P examination) for a back condition, the Veteran complained of severe low back pain, with an intensity of eight, or nine out of ten. He reported that the pain is dull most of the time, but occasionally sharp, and he endorsed the use of a back brace. He reported that his daily activities are limited, and his work is affected. However, he reported that medication helped. He reported that repetitive motion increases his pain, without any additional loss of motion. A history of flare-up was denied, as was a history of an acute episodes of incapacitating back pain during the previous 12 months. The Veteran reported a history of gradual onset of pain over the previous three to four years. Upon physical examination, the examiner recorded the following: forward flexion to 35 degrees, with pain at the end of motion; extension to 10 degrees, with pain at the end of motion; bilateral flexion to 20 degrees, with pain at 20 degrees; and bilateral rotation to 10 degrees, with pain at 10 degrees.

In a July 2009 statement, the Veteran reported that he had severe pain during all ROM testing during his July 2009 C&P examination. He reported that he has been using the medication, Vicodin, for the previous two years for pain, and that he uses ice packs daily for pain. The Veteran also reported the use of a back brace. He reported "extreme difficulty functioning in any type of physical work or semi-continuous movement." He also reported that he must lay on the floor numerous times daily to relieve his back pain.

A November 2013 VA medical record shows that the Veteran reported severe low back pain and stated, "[the] pain is so bad I cannot get out of bed."

In an April 2015 statement, the Veteran reported that his low back pain "has gotten out of control." He stated that he is unable to sit in a chair or play on the floor with his daughter, and that doing chores around the house is almost impossible. He reported that standing while doing dishes creates extreme pain. He also reported flare-ups, which cause him to become bedridden. He reported that he has attempted to work, but that after a day or so, his pain level causes him to quit. He also reported that he is unable to engage in leisure activities such as golf, fishing, and bowling. He reported that sitting causes "excruciating pain," and that his quality of life suffers.

In a May 2016 statement, regarding his back and neck pain, the Veteran stated that his quality of life has deteriorated rapidly over the past few years; his mother stated that the Veteran lays in bed most days due to his pain, and that he has not been able to work due to his pain or participate in recreational activities.

An April 2017 x-ray report shows degenerative spurring with narrowing of the intervertebral disc spaces between L4-L5 and L5-S1.

The April 2017 VA examination for a back condition shows initial ROM measurements recorded as the following: forward flexion to 75 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. Pain was noted to cause functional loss on forward flexion, extension, and right lateral flexion. The Veteran was not examined after repeated use over time or during a flare-up, and the examiner did not describe any additional limitation in terms of ROM.

During the February 2018 C&P examination for a back condition, the Veteran reported extreme discomfort on the left side of his lower back. He reported that he has had several episodes over the past year when he was sitting on the toilet and felt excruciating pain in his back and was bedridden for several days. The Veteran reported flare-ups with prolonged weightbearing activities, and when sitting or standing for greater than one minute. He reported functional loss in that he avoids recreational activities. Initial ROM measurements were recorded as the following: forward flexion to 50 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 30 degrees. The examination was not conducted during a flare-up, and the examiner did not discuss the impact of flare-ups on the Veteran's condition.

In an April 2018 statement, the Veteran reported that sleeping is difficult due to pain, and that he frequently wakes up at night due to pain.

During the October 2018 C&P examination for a back condition, the examiner noted no changes in the Veteran's condition since his February 2018 C&P examination. No testing appears to have been conducted.

During the July 2019 VA examination for a back condition, the Veteran reported current extreme pain with onset in 2007. He reported that he is unable to get out of bed some days. He reported moderate to severe flare-ups that occur three to five times weekly and last one to two days per episode. However, the examiner did not adequately address the Veteran's limitation of function or ROM due to flare-ups and pain.

During the September 2021 VA examination, the examiner noted the April 2006 VA primary care record showing involvement in a MVA when the Veteran injured his back. The examiner stated that the Veteran developed low back pain in 2006 from cumulative trauma, which has gradually increased in a linear fashion. The Veteran reported that, in 2009, his pain became so severe that it interfered with work. The Veteran reported short periods of work between 2009 and 2017, and he last worked in 2017. The examiner noted that a 2006 MRI showed a large, ruptured disc at L4-L5 with left side impingement and moderate canal stenosis, and a ruptured disc at L5-S1, also with left side impingement. 

The Veteran reported current constant low back pain, mostly left-sided, that is sharp, and which radiates down the left leg to the foot. He also reported sensory symptoms in the left foot and, occasionally, in the right foot. He reported that sitting increases his pain and that he cannot sit on hard surfaces; he cannot sit for more than 30 minutes, stand in one position for more than five minutes, walk for more than 30 minutes, or bend or twist due to pain. The Veteran reported the use of Vicodin four times daily, Advil three times daily, and Flexeril. He reported that he spends much of each day either sitting or reclining in a recliner. He reported that he can drive a vehicle and go shopping. However, he denied doing housework or cooking. The examiner noted that the Veteran does not have flare-ups. However, the examiner noted that the Veteran has functional loss and/or impairment in the form of chronic pain and his inability to bend, sit, or walk for very long. 

Initial active ROM measurements were recorded as the following: forward flexion to 10 degrees, extension to 15 degrees, bilateral flexion to 15 degrees, and bilateral rotation to 15 degrees. The examiner noted that ROM itself contributes to a functional loss in that it limits bending. Pain was noted on all movements. Passive ROM testing was not performed; the examiner stated that passive ROM testing was medically impossible to do. The examiner noted evidence of pain on weight-bearing and active motion, which causes functional loss in that the Veteran cannot bend or lift. Objective evidence of crepitus was denied. Objective evidence of localized tenderness or pain on palpation was also denied. 

The Veteran was able to perform repetitive use testing with at least three repetitions; however, no additional functional loss or ROM was indicated. The Veteran was not examined immediately after repeated use over time or during a flare-up; the examiner noted that procured evidence does not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time or with flare-ups. 

The Veteran did not have localized tenderness, guarding, or muscle spasm. Additional contributing factors to the Veteran's disability were noted as interference with sitting, standing, and disturbance of locomotion, all of which caused increased pain. Muscle strength testing revealed normal strength on all movements tested. Muscle atrophy was denied. The reflex examination revealed normal reflexes of the right knee and ankle, and hyperactive reflexes without clonus of the left knee and ankle. The sensory examination revealed normal sensation to light touch on all area tested, but for the bilateral foot/toes, which showed decreased sensation. Results of the straight let raising test were negative. Ankylosis was denied. No other neurologic abnormalities were noted. The examiner noted that the Veteran has IVDS, but without any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The use of assistive devices was denied. No other pertinent findings were indicated. 

In terms of functional impact, the examiner noted that the Veteran cannot bend or lift, cannot sit/stand/walk more than 30 minutes at a time, and cannot engage in strenuous activity involving motion of the low back. In terms of the progression of the Veteran's condition, the examiner stated that, by history provided by the Veteran, he has been unable to work since 2009, and based upon the severity of his 2009 MRI, this is reasonable. The examiner noted that the Veteran does not have true flare-ups, but that he has chronic, unrelenting pain, requiring the use of chronic opioids. 

In the September 2021 letter, Dr. S.M., noted that the Veteran's back condition has advanced since his service, and that he was initially unable to hold a job because of the advancement of the degenerative changes to his lumbar spine disorder. Dr. S.M., stated that, due to the Veteran's back and associated bilateral lower extremity disabilities, he is unable to work at all because of his inability to sit or stand for any length of time without suffering from increased pain and flare-ups.

For the period from January 30, 2009 to June 19, 2019, an initial 40 percent rating is warranted. Although the evidence shows that the Veteran's forward flexion was limited to, at worst, 35 degrees, and, at best, 70 degrees during the period, the evidence shows that the Veteran has consistently reported severe, and at times, extreme back pain. In July 2009 statement, the Veteran reported "extreme difficulty functioning in any type of physical work or semi-continuous movement." He also reported that he must lay on the floor numerous times daily to relieve his back pain. A November 2013 VA medical record shows that the Veteran reported severe low back pain and stated, "[the] pain is so bad I cannot get out of bed." 

In April 2015, the Veteran reported that standing while washing dishes creates extreme pain, sitting causes "excruciating pain," and that his quality of life suffers. The February 2018 C&P examination shows that the Veteran reported extreme discomfort on the left side of his lower back and reported several episodes over the past year when he was sitting on the toilet and felt excruciating pain in his back and was bedridden for several days. The examiner noted that the Veteran does not have true flare-ups, but that he has chronic, unrelenting pain, requiring the use of chronic opioids.

For the period from January 30, 2009 to June 19, 2019, the Veteran's symptoms more closely approximate a higher, 40 percent rating. Although the April 2017 VA examination shows forward flexion limited to 75 degrees, considering the provisions under 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, symptoms of the Veteran's condition suggest that the severity of his condition more closely approximates a higher, 40 percent rating, during the period.

For the period from June 20, 2019 to the present, an initial rating higher than 40 percent is not warranted. Even considering functional loss due to severe pain, the Veteran's disability did not manifest with unfavorable ankylosis of the entire thoracolumbar spine or entire spine; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

For the period from June 20, 2019 to the present, at worst, the evidence shows that the Veteran had severe pain, and forward flexion limited to 10 degrees. Even considering the provisions under 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, symptoms of the Veteran's condition do not suggest that the severity of his condition more closely approximates a higher, 50 percent rating, as the evidence does not show the presence of unfavorable ankylosis. 

Throughout the entire period on appeal, a rating higher than 40 percent is not warranted, as the evidence does not show unfavorable ankylosis. 38 C.F.R. § 4.71a. Instead, as of September 2021, the Veteran reported that he can drive a vehicle and go shopping. 

Throughout the entire period on appeal, the Board has considered whether higher ratings may be assigned under the Formula for Rating IVDS Based on Incapacitating Episodes. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1995). The criteria for IVDS rates the disability according to the number of "incapacitating episodes" suffered per year. 38 C.F.R. § 4.71a, DC 5243. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). While the record shows that the Veteran has reported incapacitating episodes, there is no evidence that the Veteran's disability has resulted in any incapacitating episodes that requires bed rest prescribed by a physician and treatment by a physician. Thus, a higher evaluation based on incapacitating episodes is not warranted, at any time during the period on appeal. 

The Board has also considered flare-ups per Sharp v. Shulkin, 29 Vet. App. 26 (2017), and the limitation of motion during flare-ups. However, there is no basis for the assignment of a rating higher than 40 percent in contemplation of symptomatology during flare-ups, at any time during the period on appeal. The September 2021 VA examiner noted that the Veteran does not have true flare-ups, but that he has chronic, unrelenting pain, requiring the use of chronic opioids.

The Board has also considered whether a separate rating may be assigned for bowel and bladder impairment. However, the lay and medical evidence is against a finding that the Veteran has any other neurological abnormality associated with his spine disability that warrants ratings for these disorders, at any time during the period on appeal. 

As noted above, the Veteran contends that extraschedular consideration is warranted. 

Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. Id. If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted. Id.  

The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. Specifically, all schedular criteria are meant to consider the average impairment in earning capacity resulting from the service-connected disability. See 38 C.F.R. § 4.1 (2018). As stated in 38 C.F.R. § 4.21 (2018), "[c]oordination of rating with impairment of function will...be expected in all instances." 

The Veteran's back disability is rated under DC 5243, which considers limitation of motion. His complaints and examination findings are well within the types of symptoms expected for his back disability. In fact, his symptoms are expected symptoms of his disability. The rating schedule is designed to evaluate function under the ordinary conditions of life including employment. 38 C.F.R. § 4.10. Disability ratings of the musculoskeletal system consider pain and weakness, as well as strength, speed, coordination, and endurance. 38 C.F.R. §§ 4.40, 4.45. The Veteran has described impaired function in activities such as walking, standing, sitting, bending, and twisting. He is subject to severe pain, with resulting increased symptomatology. 

As discussed above, additional limitation caused by pain has been considered under the provisions under 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, and the Veteran's disability has been rated under the schedular rating criteria and the provisions under 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45. Thus, the Board finds that the symptoms that the Veteran experiences from his back disability are contemplated by the assigned schedular criteria. Therefore, the Board finds that an increased rating for the back disability, on an extraschedular basis is not warranted. There is no reasonable doubt to be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In conclusion, an initial 40 percent rating, but no higher, is warranted for the period from January 30, 2009 to June 19, 2019, and the claim is granted. However, an initial rating higher than 40 percent is not warranted, for the period from June 20, 2019 to the present, and the claim is denied. In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2018); DeLuca, 8 Vet. App. at 206-207. To the extent that the claims have been denied, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3.

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5. An initial rating higher than 10 percent for lumbar radiculopathy, sciatic nerve of the right lower extremity, from May 31, 2009 to July 22, 2019, is denied.

6. An initial 20 percent rating for lumbar radiculopathy, sciatic nerve of the right lower extremity, from July 23, 2019 to the present, is granted. 

7. An initial rating higher than 10 percent for lumbar radiculopathy, sciatic nerve of the left lower extremity, from May 31, 2009 to July 22, 2019, is denied. 

8. An initial 20 percent rating for lumbar radiculopathy, sciatic nerve of the left lower extremity, from July 23, 2019 to the present, is granted. 

The Veteran contends that his bilateral lower extremity radiculopathy is worse than that which is contemplated by his current 10 percent ratings under DC 8520. 

For the following reasons, for the period from May 31, 2009 to July 22, 2019, a rating higher than 10 percent for right lower extremity sciatic nerve radiculopathy is not warranted, and the claim is denied; for the period from July 23, 2019 to the present, a higher, 20 percent rating, for right lower extremity sciatic nerve radiculopathy is warranted, and the claim is granted; for the period from May 31, 2009 to July 22, 2019, a rating higher than 10 percent for left lower extremity sciatic nerve radiculopathy is not warranted, and the claim is denied; and for the period from July 23, 2019 to the present, a higher, 20 percent rating, for left lower extremity sciatic nerve radiculopathy is warranted, and the claim is granted.

Under DC 8520, a 10 percent evaluation is warranted for mild incomplete paralysis; a 20 percent evaluation is warranted for moderate incomplete paralysis; a 40 percent evaluation is warranted for moderately severe incomplete paralysis; a 60 percent evaluation is warranted for severe, with marked muscular atrophy, incomplete paralysis; and the highest evaluation of 80 percent evaluation is warranted for complete paralysis where 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, DC 8520.

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 words "mild," "moderate" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.

An April 2006 VA primary care note shows that the Veteran reported involvement in a MVA two weeks prior and complained of neck and right-sided mid-back pain, but he did not complain of radiation, numbness, or tingling to the legs or feet.

A May 2009 VA lumbar spine MRI report shows that the L4-L5 level has moderate to large central and left paracentral herniation resulting in impingement of the left L5 nerve root and abutment of right L5 nerve root. The report also shows moderate to severe left lateral recess, moderate central canal, right lateral recess stenosis; and mild bilateral foraminal stenosis of the left, which is worse than the right. The L5-S1 level shows left paracentral/foraminal disc protrusion abutting the left S1 nerve root. The report shows mild to moderate left lateral recess stenosis.

During the July 2009 VA C&P examination for a back condition, the Veteran denied radiation of pain into his legs. Upon physical examination, the examiner noted that the bilateral lower limbs are negative for any neurological deficiency.

During the April 2017 VA examination for a back condition, the Veteran reported low back pain with shooting pain into the left leg, with numbness and tingling. However, the examiner noted no radicular pain or any other signs or symptoms due to radiculopathy. 

During the February 2018 C&P examination for a back condition, the Veteran reported ongoing back pain with extreme discomfort on the left side of the lower back, with radiating pain down his left leg, traveling to his feet/toes. He reported constant, daily, discomfort of radiation from the back into his left buttocks area, with radiation into the calf and the anterior aspect of his left foot, which he described as a tingling sensation. The examiner noted that the Veteran has bilateral radiculopathy, which is mild in severity, with involvement of the L4/L5/S1/S2/S3 sciatic nerve roots. The examiner also noted that the Veteran has mild constant pain and paresthesias and/or dysesthesias of the left lower extremity.

In an April 2018 statement, the Veteran reported that shooting pains in his back wakes him up at night, and that the shooting pain travels down his left leg to his knee and foot.

A September 2018 VA pain medicine consultation shows that the Veteran reported low back pain for 12 years, with radiating pain to both legs. The Veteran rated his pain as seven out of ten, which is exacerbated by standing and sitting for long periods of time.

During the July 2019 VA examination for a back condition, the Veteran reported extreme shooting pain down both legs, and that he is unable to sit or stand for long periods of time. He reported the use of Vicodin. He reported frequent flare-ups. The examiner noted bilateral radiculopathy of the sciatic nerve roots with moderate intermittent pain and numbness in the bilateral lower extremity. Mild left lower extremity paresthesias and/or dysesthesias was noted. The examiner noted that the severity of the Veteran's radiculopathy is mild on the right side and moderate on the left side. However, the examiner did not address the impact of flare-ups and pain on the Veteran's condition.

During the July 2019 VA examination for peripheral neuropathy, the examiner noted no evidence of radiculopathy in the right leg and radiculopathy of less severity in the left leg.

In a February 2020 VA addendum opinion, the examiner was asked to clarify the discrepancy between the July 2019 VA back and peripheral neuropathy examinations. The examiner indicated that the Veteran has mild radiculopathy in the right lower extremity and moderate in the left. Again, the examiner did not address the impact of flare-ups and pain on the Veteran's condition.

As discussed above, the September 2021 VA examination for a back condition shows that the Veteran reported current constant low back pain, mostly left-sided, that is sharp, and which radiates down the left leg to the foot. He also reported sensory symptoms in the left foot and, occasionally, in the right foot. He reported that sitting increases his pain and that he cannot sit on hard surfaces, he cannot sit for more than 30 minutes, stand in one position for more than five minutes, walk for more than 30 minutes, or bend or twist due to pain. The Veteran reported the use of Vicodin four times daily, Advil three times daily, and Flexeril.

The examiner noted bilateral radiculopathy of the sciatic nerve roots with mild intermittent pain to the right lower extremity and severe to the left, moderate paresthesias and/or dysesthesias to the bilateral lower extremity, and moderate numbness to the bilateral lower extremity. The examiner stated that the Veteran has daily significant pain, which limits movement and ambulation. The examiner noted that the Veteran does not have true flare-ups, but that he has chronic, unrelenting pain, requiring the use of chronic opioids. As noted above, in terms of the progression of the Veteran's condition, the examiner stated that based on history and severity of the 2009 MRI findings, 2009 is when his pain became progressively worse.

For the period from May 31, 2009 to July 22, 2019, a higher than 10 percent for right lower extremity sciatic nerve radiculopathy is not warranted, as the severity of the Veteran's right lower extremity sciatic nerve radiculopathy has shown to have manifested no worse than mild incomplete paralysis during the period, which is commensurate with a 10 percent evaluation under DC 8520.

For the period from May 31, 2009 to July 22, 2019, the evidence shows that symptoms of the Veteran's right lower extremity sciatic nerve radiculopathy are commensurate with a 10 percent evaluation under DC 8520. As noted above, the April 2006 VA primary care note shows that the Veteran reported involvement in a MVA two weeks prior and complained of neck and right-sided mid-back pain, but did not complaint of radiation, numbness, or tingling to the legs or feet. A May 2009 VA lumbar spine MRI report shows impingement and abutment of the bilateral L5-S1 nerve root. The July 2009 VA C&P examination shows that the Veteran denied radiation of pain into his legs. Upon physical examination, the examiner noted that the bilateral lower limbs are negative for any neurological deficiency. The April 2017 VA examiner noted no radicular pain or any other signs or symptoms due to radiculopathy. The February 2018 C&P examination shows bilateral lower extremity radiculopathy, mild severity. The September 2018 VA pain medicine consultation shows that the Veteran reported radiating pain to both legs, rated as seven out of ten. As the evidence shows that the Veteran's symptoms are most consistently characterized as mild during the period, a rating higher than 10 percent is not warranted under DC 8520, and the claim is denied.

For the period from July 23, 2019 to the present, a higher, 20 percent rating, is warranted for right lower extremity sciatic nerve radiculopathy, as the severity of the Veteran's right lower extremity sciatic nerve radiculopathy has shown to have manifested as moderate incomplete paralysis during the period, which is commensurate with a 20 percent evaluation under DC 8520.

For the period from July 23, 2019 to the present, the evidence shows that symptoms of the Veteran's right lower extremity sciatic nerve radiculopathy are contemplated by a 20 percent evaluation under DC 8520. As noted above, the July 2019 VA examination shows that the Veteran reported extreme shooting pain down both legs, and that he is unable to sit or stand for long periods of time. He reported the use of Vicodin. He reported frequent flare-ups. The examiner noted bilateral radiculopathy of the sciatic nerve roots with moderate intermittent pain and numbness in the bilateral lower extremity. Mild left lower extremity paresthesias and/or dysesthesias was noted. The September 2021 VA examination shows mild intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness to the right lower extremity. Thus, during the period, the evidence tends to demonstrate symptoms that are contemplated by a 20 percent evaluation under DC 8520. As the evidence shows that the Veteran's symptoms are characterized as moderate during the period, a higher, 20 percent rating, is warranted under DC 8520, and the claim is granted.

For the period from May 31, 2009 to July 22, 2019, a higher than 10 percent for left lower extremity sciatic nerve radiculopathy is not warranted, as the severity of the Veteran's left lower extremity sciatic nerve radiculopathy has shown to have manifested no worse than mild incomplete paralysis during the period, which is commensurate with a 10 percent evaluation under DC 8520.

For the period from May 31, 2009 to July 22, 2019, the evidence shows that symptoms of the Veteran's left lower extremity sciatic nerve radiculopathy are commensurate with a 10 percent evaluation under DC 8520. The April 2006 VA primary care note shows no complaints of radiation, numbness, or tingling to the legs or feet. The July 2009 VA C&P examination shows that the Veteran denied radiation of pain into his legs. Upon physical examination, the examiner noted that the bilateral lower limbs are negative for any neurological deficiency. The April 2017 VA examiner noted no radicular pain or any other signs or symptoms due to radiculopathy. The February 2018 C&P examination shows bilateral lower extremity radiculopathy, mild severity. As the evidence shows that the Veteran's symptoms are most consistently characterized as mild during the period, a rating higher than 10 percent is not warranted under DC 8520, and the claim is denied.

For the period from July 23, 2019 to the present, a higher, 20 percent rating, is warranted for left lower extremity sciatic nerve radiculopathy, as the severity of the Veteran's left lower extremity sciatic nerve radiculopathy has shown to have manifested as moderate incomplete paralysis during the period, which is commensurate with a 20 percent evaluation under DC 8520.

For the period from July 23, 2019 to the present, the evidence shows that symptoms of the Veteran's left lower extremity sciatic nerve radiculopathy are contemplated by a 20 percent evaluation under DC 8520. The July 2019 VA examination shows left lower extremity radiculopathy, moderate in severity. The February 2020 VA addendum opinion indicates that the Veteran has moderate radiculopathy in the left lower extremity. The September 2021 VA examination shows severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness to the left lower extremity. As the evidence shows that the Veteran's symptoms are most consistently characterized as moderate during the period, a higher, 20 percent rating, is warranted under DC 8520, and the claim is granted.

The Board has considered the Veteran's lay statements. See Layno, 6 Vet. App. 465, at 470. To the extent that the Veteran has argued that higher ratings for right and left lower extremity sciatic are warranted, these assertions are outweighed by more probative evidence provided by the examinations of qualified medical professionals. See Jones, 7 Vet. App. 134, at 137-138. As such, his lay statements do not provide any basis upon which to assign any higher ratings.

In conclusion, for the period from May 31, 2009 to July 22, 2019, a rating higher than 10 percent for right lower extremity sciatic nerve radiculopathy is not warranted, and the claim is denied; for the period from July 23, 2019 to the present, a higher, 20 percent rating, for right lower extremity sciatic nerve radiculopathy is warranted, and the claim is granted; for the period from May 31, 2009 to July 22, 2019, a rating higher than 10 percent for left lower extremity sciatic nerve radiculopathy is not warranted, and the claim is denied; and for the period from July 23, 2019 to the present, a higher, 20 percent rating, for left lower extremity sciatic nerve radiculopathy is warranted, and the claim is granted. To the extent that the claims have been denied, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3.

9. A TDIU, from January 30, 2009 to February 5, 2018, is granted. 

The Veteran is in receipt of a TDIU, effective February 6, 2018. He contends that he is entitled to a TDIU, prior to February 6, 2018. Thus, the following discussion will focus on the period prior to February 6, 2018. 

For the following reasons, a TDIU is warranted, for the period from January 30, 2009 to February 5, 2018, and the claim is granted. 

Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id.  

When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

From January 30, 2009, the Veteran had the following service-connected disabilities: chronic lumbosacral strain with IVDS and DDD, rated as 40 percent disabling; bipolar disorder, rated as 30 percent disabling; and status post recurrent right knee anterior cruciate ligament (ACL) injury, rated as 20 percent disabling. From January 30, 2009, the Veteran's combined rating was 70 percent. Under 38 C.F.R. § 4.16(a), the Veteran has met the schedular requirement for a TDIU, from January 30, 2009.

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(a). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19.

As the Veteran has met the scheduler threshold criteria for the award of a TDIU, from January 30, 2009, the pertinent question is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of service-connected disability or disabilities.

For the period from January 30, 2009 to February 5, 2018, the evidence demonstrates that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. The July 2009 VA C&P examination shows that the Veteran complained of severe low back pain, with an intensity of eight, or nine out of ten, and reported that his daily activities are limited, and his work is affected. In July 2009, the Veteran reported that during his July 2009 VA C&P examination, he had severe pain during all ROM testing, and reported "extreme difficulty functioning in any type of physical work or semi-continuous movement." He reported that he must lay on the floor numerous times daily to relieve his back pain. A November 2013 VA medical record shows that the Veteran reported severe low back pain and stated, "[the] pain is so bad I cannot get out of bed." In April 2015, the Veteran reported that his low back pain "has gotten out of control," and he is unable to sit in a chair or play on the floor with his daughter, and that doing chores around the house is almost impossible. He reported that standing while doing dishes creates extreme pain. He also reported flare-ups, which cause him to become bedridden. He reported that he has attempted to work, but that after a day or so, his pain level causes him to quit. He also reported that he is unable to engage in leisure activities such as golf, fishing, and bowling. He reported that sitting causes "excruciating pain," and that his quality of life suffers. In May 2016, the Veteran stated that his quality of life has deteriorated rapidly over the past few years, and his mother stated that the Veteran lays in bed most days due to his pain, that he has not been able to work due to his pain, and that he does not participate in recreational activities.

As discussed above, the September 2021 VA medical opinion shows that the Veteran reported that he has been unable to work since 2009. The examiner stated that, based upon the severity of his 2009 MRI, this is reasonable. The examiner noted that the Veteran does not have true flare-ups, but that he has chronic, unrelenting pain, requiring the use of chronic opioids. In the September 2021 private medical letter, Dr. S.M., noted that the Veteran's back condition has advanced since his service, and that he was initially unable to hold a job because of the advancement of the degenerative changes to his lumbar spine condition. Dr. S.M., stated that, due to the Veteran's back and associated bilateral lower extremity disabilities, he is unable to work at all because of his inability to sit or stand for any length of time without suffering from increased pain and flare-ups. 

In conclusion, for the period from January 30, 2009 to February 5, 2018, the evidence demonstrates that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. Therefore, as the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation, for the period from January 30, 2009 to February 5, 2018, entitlement to a TDIU is warranted for the period, and the claim is granted. See 38 C.F.R. § 4.16(a).

 

 

Vito A. Clementi

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Timothy T. Emmart

The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.