Citation Nr: 21077492 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 91-43 894 DATE: December 29, 2021 ORDER A disability rating of 20 percent, but no higher, for the service-connected dorsal lumbar paravertebral myositis with bulging discs L4-5 and L5-S1, and degenerative joint disease (DJD) L5-S1 apophyseal joints (hereinafter "lumbar myositis with bulging discs and DJD") for the period on appeal prior to September 23, 2001 is granted. A disability rating in excess of 20 percent for the service-connected lumbar myositis with bulging discs and DJD for the period on appeal from September 23, 2001 to July 17, 2013 is denied. A disability rating of 40 percent, but no higher, for the service-connected lumbar myositis with bulging discs and DJD for the period on appeal from July 17, 2013 to November 20, 2020 is granted. A disability rating in excess of 40 percent for the service-connected lumbar myositis with bulging discs and DJD for the period on appeal from November 20, 2020 is denied. A disability rating in excess of 20 percent for the service-connected right lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD is denied. A disability rating in excess of 10 percent for the service-connected left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD for the period on appeal prior to November 20, 2020 is denied. A disability rating of 20 percent, but no higher, for the service-connected left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD for the period on appeal from November 20, 2020 is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period on appeal from March 15, 2011 to June 20, 2013 is granted. Assignment of special monthly compensation (SMC) by reason of being housebound under 38 U.S.C. § 1114(s) is denied. An effective date of March 15, 2011, but no earlier, for eligibility for Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is granted. REMANDED Entitlement to SMC based on the need for aid and attendance under 38 U.S.C. § 1114(l) is remanded. FINDINGS OF FACT 1. Prior to September 23, 2001, the Veteran's dorsal lumbar paravertebral myositis (as characterized prior to September 23, 2001) was manifested by symptoms more closely approximating moderate limitation of motion of the lumbar spine, to include consideration of additional functional loss following repeated use over time and during flare-ups; however, prior to September 23, 2001, the preponderance of the evidence shows that the Veteran's dorsal lumbar paravertebral myositis did not more closely approximate severe limitation of motion of the lumbar spine, to include consideration of additional functional loss following repeated use over time and during flare-ups. 2. From September 23, 2001 to July 17, 2013, the preponderance of the evidence shows that the Veteran's lumbar myositis with bulging discs and DJD was not manifested by symptoms more nearly approximating forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the thoracolumbar spine, to include consideration of additional functional loss following repeated use over time and during flare-ups; alternatively, the Veteran's lumbar myositis with bulging discs and DJD was not manifested by symptoms approximating severe limitation of motion of the thoracolumbar spine, to include consideration of additional functional loss following repeated use over time and during flare-ups. 3. From July 17, 2013 to November 20, 2020, the Veteran's lumbar myositis with bulging discs and DJD was manifested symptoms more nearly approximating limitation of forward flexion of the thoracolumbar spine to 30 degrees, to include consideration of additional functional loss following repeated use over time and during flare-ups; however, from July 17, 2013 to November 20, 2020, the preponderance of the evidence shows that the Veteran's symptoms did not more nearly approximate unfavorable ankylosis of the thoracolumbar or entire spine. 4. From November 20, 2020, the Veteran's lumbar myositis with bulging discs and DJD was not manifested symptoms more nearly approximating unfavorable ankylosis of the thoracolumbar or entire spine. 5. During the entire period on appeal, the Veteran's right lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD has not more nearly approximated severe incomplete paralysis of the sciatic nerve. 6. Prior to November 20, 2020, the Veteran's left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD did not more nearly approximate moderate incomplete paralysis of the sciatic nerve. 7. From November 20, 2020, the Veteran's left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD has more nearly approximated moderate, but not severe, incomplete paralysis of the sciatic nerve. 8. As of March 15, 2011, the Veteran's last date of employment, the Veteran completed high school and an electrician training course and had experience as a mail carrier. 9. As of March 15, 2011, the Veteran's service-connected disabilities included lumbar myositis with bulging discs and DJD, rated as 20 percent disabling, IVDS and cervical intervertebral disc displacement, rated as 20 percent disabling, right upper extremity radiculopathy associated with IVDS and cervical intervertebral disc displacement, rated as 20 percent disabling, left upper extremity radiculopathy associated with IVDS and cervical intervertebral disc displacement, rated as 20 percent disabling, right lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD, rated as 10 percent disabling, left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD, rated as 10 percent disabling, and chronic conjunctivitis, rated as 10 percent disabling. 10. From March 15, 2011 to June 20, 2013, the Veteran's service-connected disabilities precluded him from maintaining substantially gainful employment consistent with his education and work history. 11. The Veteran does not have a single service-connected disability rated as 100 percent disabling or a TDIU based on a single service-connected disability. 12. As of March 15, 2011, the Veteran was permanently and totally disabled. CONCLUSIONS OF LAW 1. Prior to September 23, 2001, the criteria for a 20 percent disability rating, but no higher, for the service-connected lumbar myositis with bulging discs and DJD (then characterized as "dorsal lumbar paravertebral myositis") have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code Diagnostic Code 5292-5021 (2001). 2. From September 23, 2001 to July 17, 2013, the criteria for a disability rating in excess of 20 percent for the service-connected lumbar myositis with bulging discs and DJD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 3. From July 17, 2013 to November 20, 2020, the criteria for a 40 percent disability rating, but no higher, for the service-connected lumbar myositis with bulging discs and DJD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 4. From November 20, 2020, the criteria for a disability rating in excess of 40 percent for the service-connected lumbar myositis with bulging discs and DJD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 5. During the entire period on appeal, the criteria for a disability rating in excess of 20 percent for the service-connected right lower extremity radiculopathy associated with lumbar myositis with bulging discs have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8520. 6. Prior to November 20, 2020, the criteria for a disability rating in excess of 10 percent for the service-connected left lower extremity radiculopathy associated with lumbar myositis with bulging discs have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8520. 7. From November 20, 2020, the criteria for a disability rating of 20 percent, but no higher, for the service-connected left lower extremity radiculopathy associated with lumbar myositis with bulging discs have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14. 4.124a, Diagnostic Code 8520. 8. From March 15, 2011 to June 20, 2013, the criteria for assignment of a TDIU due to service-connected disabilities have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 9. During the entire period on appeal, the criteria for assignment of SMC under 38 U.S.C. § 1114(s) by reason of being housebound have not been met. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352. 10. From March 15, 2011, but no earlier, the criteria for eligibility for DEA benefits under 38 U.S.C. Chapter 35 have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.807(a), 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to October 1984. This case is before the Board of Veterans' Appeals (Board) on appeal from February 1994 and March 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the February 1994 decision, the RO denied a disability rating in excess of 10 percent for dorsal lumbar paravertebral myositis. In March 1994, VA received the Veteran's Notice of Disagreement (NOD). In April 1994, the RO issued a Statement of the Case (SOC). In November 1994, within one year of the March 1994 rating decision, VA received the Veteran's substantive appeal to the Board. In the March 2014 decision, the RO increased the rating for right lower extremity radiculopathy from 10 percent to 20 percent, effective June 20, 2013 and denied a disability rating in excess of 10 percent for left lower extremity radiculopathy. In addition, the RO denied SMC by reason of being housebound and/or based on the need for aid and attendance. In March 2015, VA received the Veteran's NOD. In September 2015, the RO issued a SOC. In November 2015, VA received the Veteran's VA Form 9 appeal to the Board. By way of history, following receipt of the Veteran's March 1994 substantive appeal, in December 1996 and April 2004, the Board remanded the case for further development and adjudicative action. In a July 2005 rating decision, the RO increased the rating for the Veteran's low back disability, now characterized as "dorsal lumbar paravertebral myositis with bulging discs L4-5 and L5-S1, and degenerative joint disease (DJD) L5-S1 apophyseal joints," from 10 percent to 20 percent, effective September 23, 2001. The July 2005 decision also assigned separate 10 percent ratings for right and left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD, also effective from September 23, 2001. In a February 2006 decision, the Board denied the Veteran's claim for increased ratings for the service-connected lumbar myositis with bulging discs and DJD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims Court. In a January 2007 Court Order granting a Joint Motion for Partial Remand (JMPR) the Court vacated the Board's February 2006 decision in part and remanded the case for further development. In a January 2009 decision, the Board again denied the Veteran's claim for increased ratings for the service-connected lumbar myositis with bulging discs and DJD. The Veteran appealed the decision to Court. In a March 2010 Court Order granting a Joint Motion for Remand (JMR), the Court vacated the Board's January 2009 decision and remanded the case for further development. In October 2010, the Board remanded the case back to the RO for additional development. In May 2012, the Board again remanded the case for further development and adjudicative action. Following receipt of the Veteran's November 2015 VA Form 9 and certification to the Board, the two appeals streams stemming from the February 1994 and March 2014 rating decisions were merged. In February 2016 and November 2017, the Board remanded the case for further development. In June 2018, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of that testimony is associated with the claims file. In September 2021, the Board sent the Veteran a letter advising him of the opportunity for a new hearing before another VLJ. The Veteran did not respond to the letter within 30 days. In July 2018 and August 2020, the Board remanded the case for further development. In a February 2021 rating decision, the RO increased the disability rating for the service-connected lumbar myositis with bulging discs and DJD from 20 percent to 40 percent, effective November 20, 2020. The RO also granted service connection for intervertebral disc syndrome and cervical intervertebral disc displacement and assigned an initial disability rating of 20 percent, effective January 26, 1988. As this constitutes a full grant of the benefit sought on appeal, that issue is no longer on appeal. In a March 2021 rating decision, the RO assigned a total disability based on individual unemployability (TDIU) due to service-connected disabilities from June 20, 2013, the date of the Veteran's claim for a TDIU. As will be discussed below, the issue of entitlement to TDIU, prior to June 20, 2013, remains on appeal. During the June 2018 Board hearing, the Veteran identified two private treatment providers who may have had medical records relevant to the claims at issue. In the August 2020 decision, the Board instructed the RO to provide the Veteran with a VA Form 21-4142 Authorization to Disclose Information to the Department of Veterans Affairs, and following a response from the Veteran, make reasonable efforts to obtain records from the two treatment providers in question. As directed, the RO sent a VA Form 21-4142 to the Veteran in August and September 2020 after the Veteran failed to respond within 30 days. However, the RO again did not receive a response from the Veteran, and as a result, did not receive the information necessary to obtain the medical records sought by the August 2020 Board remand directives. Nonetheless, as the RO made reasonable efforts to obtain the requisite information from the Veteran regarding the two treatment providers identified during the June 2018 Board hearing, there has been substantial compliance with the remand directives of the August 2020 Board decision. Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, the claim for increased rating for lumbar myositis with bulging discs and DJD has been on appeal continuously since receipt of a claim for increase on May 15, 1992. In that correspondence, the Veteran identified a "condition of the discs in my back" and sought an increase to "100%" based on his back disability and other disabilities identified therein. As the correspondence identifies the benefit sought, the May 15, 1992 correspondence constitutes an informal claim for benefits. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Accordingly, the proper date of claim for increase for the service-connected lumbar myositis with bulging discs and DJD is May 15, 1992. Regarding the issues of increased ratings for the service-connected right and left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD, this decision will address whether increased ratings are warranted for the right and left lower extremity radiculopathy from June 20, 2013, the date that the Veteran's claim for increased rating was received. Although this decision will also address whether separate ratings for the right and/or left lower extremity radiculopathy are warranted prior to the current initial effective date of September 23, 2001 based on the existence of separate neurological symptoms, as no claim for increased rating was received until June 20, 2013, the issues of increased ratings for the right and lower radiculopathy from September 23, 2001 to June 20, 2013 are not currently on appeal. Finally, in November 2011, VA received a copy of the Veteran's claim for Social Security Administration (SSA) disability benefits. In the claim, the Veteran stated that, as of March 2011, he could no longer perform his job duties as a mail carrier due to medical disabilities including "myositis." See SSA disability claim dated November 23, 2011. Accordingly, an inferred claim for a TDIU is reasonably raised as part and parcel of the claim for increased rating for lumbar myositis with bulging discs and DJD for the period prior to June 20, 2013, the current effective date for the Veteran's TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a disability rating in excess of 10 percent for the service-connected lumbar myositis with bulging discs and DJD for the period on appeal prior to September 23, 2001. 2. Entitlement to a disability rating in excess of 20 percent for the service-connected lumbar myositis with bulging discs and DJD for the period on appeal from September 23, 2001 to November 20, 2020. 3. Entitlement to a disability rating in excess of 40 percent for the service-connected lumbar myositis with bulging discs and DJD for the period on appeal from November 20, 2020. Applicable Law When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Prior to September 23, 2001, the Veteran's lumbar myositis with bulging disks and DJD was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5292-5021 (2001). As noted above, prior to September 23, 2001, the Veteran's low back disability was characterized as dorsal lumbar paravertebral myositis. From September 23, 2001, the Veteran's lumbar myositis with bulging disks and DJD is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. During the pendency of the appeal, the rating criteria for evaluating disabilities of the lumbar spine under 38 C.F.R. § 4.71a was amended. First, regarding the period prior to September 23, 2001, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The hyphenated codes for the Veteran's reflected that spine, limitation of motion of, lumbar is the service-connected disability under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2001) and myositis is the basis of the rating assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5021 (2001). The pre-amendment Diagnostic Code 5021 instructed that myositis be rated on limitation of motion of the affected parts, as arthritis, degenerative, except gout which will be rated under diagnostic code 5002. 38 C.F.R. § 4.71a, Diagnostic Code 5021 (2001). Limitation of motion of the lumbar spine was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2001). 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2001), which rated degenerative arthritis, provided that degenerative arthritis be rated based on limitation of motion of the joint involved. Under Diagnostic Code 5292, a 10 percent rating was warranted for slight limitation of motion of the lumbar spine. A 20 percent rating was warranted for moderate limitation of motion of the lumbar spine. Finally, a 40 percent rating was warranted for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2001). The words "slight," "moderate" and "severe" are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just.38 C.F.R. § 4.6. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Effective August 27, 2003, VA amended 38 C.F.R. § 4.71a by introducing the General Rating Formula for Diseases and Injuries of the Spine. The July 2005 rating decision, based on the authority provided by 38 C.F.R. § 3.114(a) with regard to assignment of effective dates in the event of liberalizing law, assigned a 20 percent rating for the Veteran's lumbar myositis with bulging discs and DJD from September 23, 2001 based on the new General Rating Formula for Diseases and Injuries of the Spine. Accordingly, the Veteran's lumbar myositis with bulging discs and DJD must be evaluated based on the General Rating Formula for Diseases and Injuries of the Spine, or alternatively, as intervertebral disc syndrome based on incapacitating episodes, from September 23, 2001. From August 27, 2003, disabilities of the spine are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5237 through 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In addition, Intervertebral Disc Syndrome (IVDS), under Diagnostic Code 5243 may also be rated based on Incapacitating Episodes (IVDS Formula). 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular evaluations under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. Id. Note (1) to the General Rating Formula directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate diagnostic code. Id. Under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An "incapacitating episode" under this formula is defined as "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. The General Rating Formula provides a schedule of ratings for spine disabilities 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 an injury or disease. During the pendency of the instant appeal, VA promulgated new regulations governing ratings for musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. In this case, prior to September 23, 2001, only the old rating criteria for rating myositis, and by extension, limitation of motion of the lumbar spine, may be considered. However, from September 23, 2001, both the old and new criteria may be considered, and the criteria that is more favorable to the Veteran will be applied. Facts Turning to the evidence of record, an August 1993 VA medical certificate indicates that the Veteran experienced "persistent low back pain." Examination of the Veteran's low back revealed tenderness over the lumbosacral vertebrae and "mild" scoliosis. Furthermore, the Veteran had an antalgic gait at the time of the visit. However, there was no neurological involvement. See VA medical certificate dated August 16, 1993. During the period on appeal, the Veteran received an initial VA examination of his lumbar spine in May 1994. Range of motion measurements for the lumbar spine were as follows: (1) forward flexion of the lumbar spine limited to 70 degrees; (2) extension to 40 degrees; (3) left lateral flexion to 45 degrees; (4) right lateral flexion to 45 degrees; (5) left lateral rotation to 45 degrees; and (6) right lateral rotation to 40 degrees. The examiner noted pain on forward flexion but did not specify the degree at which pain began. Finally, there was no evidence of neurological involvement; specifically, a straight leg test conducted during the examination was negative for radiculopathy. Subsequently, a June 1994 CT scan of the lumbar spine revealed bulging discs at the L4-5 and L5-S1 vertebrae as well as mild degenerative osteoarthropathy at the L5-S1 vertebra. See VA CT scan report dated June 2, 1994. A July 1995 VA medical certificate reflects a diagnosis of myositis and prescription of bedrest for an unspecified period of time. See VA medical certificate dated July 5, 1995. An October 1996 VA medical consultation indicates that the Veteran's low back pain did not radiate and there was no evidence of paresthesias or numbness. Active ROM of the lumbar spine was "full"; however, the treating physician relied on a fingertips-to-floor distance (FTF) test rather than a goniometer. See VA consultation sheet dated October 15, 1996. Similarly, a February 1998 VA treatment note reveals that active ROM was full based on a FTF test. At the time of the visit, the Veteran's low back pain was intermittent rather than constant. There were no sensory deficits and deep tendon reflexes (DTRs) were normal. See VA treatment note dated February 19, 1998. A January 1999 VA medical consultation indicates that there was no pain on flexion or extension. Furthermore, the Veteran's low back was negative for radiating, weakness, and paresthesias. See VA medical consultation dated January 4, 1999. A September 1999 VA medical certificate indicates that the Veteran was at that time experiencing "9/10" lower back pain making it "difficult to ambulate." The diagnosis was a "lumbosacral sprain." VA medical certificate dated September 20, 1999. A December 2000 VA progress note indicates that the Veteran was experiencing muscle spasms in his low back. See December 6, 2000 VA progress note. The Veteran received another VA examination for his lumbar spine in August 2002. During the examination, the Veteran described "mild to severe low back pain" upon "standing up, fishing, sleeping, doing mechanics, [and] sitting on a bad posture." Regarding flare-ups, the Veteran reported that he experienced "more than 15 occasions" of acute low back pain, resolved by walking for 15 minutes; precipitating activities were the activities described above. The Veteran missed 3 days of work within the past year due to low back pain. Functional impairments included difficulty using the "mailbag all the time and difficulty lifting objects more than 50 or 60 pounds." Regarding ROM, forward flexion of the thoracolumbar spine was limited to 80 degrees, and extension, right and left lateral flexion, and right and left lateral rotation were to 35 degrees. There was no painful motion on ROM testing. Regarding additional functional loss due to pain, weakness, fatiguability, and/or incoordination during flare-ups, the examiner stated that ROM would remain "within normal limits." There was "mild" muscle spasm but "no postural abnormalities of the back nor fixed deformities." Notably, the August 2002 examiner did not review the claims file. A September 2002 MRI revealed "straightening of physiologic lumbar lordosis consistent with muscle spasm and/or lumbar myositis." See private MRI report dated September 6, 2002. The Veteran received another VA examination for his lumbar spine in November 2004. Symptoms including "low back pain with radiation to midback and lungs and upon driving for 30 minutes." Regarding flare-ups, the Veteran identified 12 occasions of more severe pain lasting from two hours to one and one-half days. The flare-ups were precipitated by bending, sitting for 20 minutes, "doing mechanics on his car," and "bedrest for two or three hours." Alleviating facts including "walking for one hour and running one mile." Functional impacts also included "difficulty fishing and hunting"; however, the Veteran continued to work full-time as a mail carrier without duty restrictions and could "drive a car for two hours without problems." During periods of acute pain, the Veteran's wife helped him with "dress, toileting, and grooming"; nonetheless, the Veteran was predominantly independent in this regard. Regarding ROM, forward flexion of the lumbar spine was to 90 degrees, extension was to 30 degrees, right and left lateral flexion were to 30 degrees, and right and left lateral rotation were to 45 degrees. There was no painful motion of the lumbar spine in any ROM. Regarding additional functional loss following repeated use over time due to pain, weakness, fatiguability and/or incoordination, the examiner noted that there was no deterioration following repeated use testing during the examination and that there was "actually no major functional impact." An August 2005 Department of Labor Duty Status report indicates that the Veteran did experience pain on all ROMs of the lumbar spine. See Duty Status Report dated August 9, 2005. A November 2007 MRI also revealed straightening of the normal lumbar spine lordosis resulting in muscle spasm as well as bulging disks and degenerative disc disease at the L4-L5 and L5-S1 vertebrae. See private MRI report dated November 14, 2007. A January 2007 doctor's note indicates that the Veteran's chronic lower back pain and degenerative disc disease were not responding to physical therapy. See Doctor's note dated January 29, 2008. Of record are September 2010 and February 2011 doctor's notes indicating that the Veteran had been placed on bedrest for a period totalling 4 weeks. However, the notes do not state why the Veteran was placed on bedrest. See Doctors' notes dated September 13, 2010 and January 25, 2011. A SSA record dated August 2011 indicates that the Veteran's forward flexion of the thoracolumbar spine had decreased to 50 degrees and right and left lateral flexion had decreased to 15 degrees. See SSA physical evaluation dated August 4, 2011. A June 2013 doctor's letter related to the Veteran's SSA claim indicates that the Veteran presented with "constant stiffness of his back with continuous muscle spasm." Functional impairments included inability to tolerate extended standing or sitting, heavy lifting, bending, squatting, or crawling; climbing and reaching were also limited. See Doctor's letter dated June 13, 2013. The Veteran received a new VA examination for his lumbar spine in July 2013. During the examination, the Veteran described "difficulty getting into and out of his car due to back pain" and episodes of "locking" of his back. Regarding flare-ups, the Veteran reported "increased back pain" precipitated by "bending forward." ROM measurements during the examination were as follows: (1) forward flexion limited to 60 degrees, with objective evidence of pain at 30 degrees; (2) extension limited to 20 degrees, with objective evidence of pain at 10 degrees; (3) right lateral flexion limited to 20 degrees, with objective evidence of pain at 10 degrees; (4) left lateral flexion limited to 20 degrees, with objective evidence pain at 10 degrees; (5) right lateral rotation of 20 degrees, with objective evidence of pain at 10 degrees; and, (6) left lateral rotation of 20 degrees, with objective evidence of pain at 10 degrees. There was no additional functional loss after 3 repetitions. Although the examiner stated that there would be no additional functional loss due to pain, weakness, fatiguability and/or incoordination, the examiner indicated that forward flexion and extension of the thoracolumbar spine would deteriorate to "0 degrees" for several hours during episodes of "locking" of the Veteran's back muscles. The examiner provided a diagnosis of IVDS and noted incapacitating episodes of at least 1 week but less than 2 weeks over the past 12 months. At the time of examination, the Veteran relied on constant use of a cane. Regarding functional impact, the examiner indicated that the Veteran "could only work at a sedentary job and should not lift more than 15 pounds or do repetitive bending or twisting at the trunk." During the June 2018 Board hearing, the Veteran reported experiencing shooting pain in his low back that would cause him to have to lie down "the whole day" until the pain stops. See June 2019 Board hearing transcript at 9. The Veteran asserted that he was "housebound" as a result of his low back disability and had "to stay home for rest with the [heating] pad and medication." See id. at 14. The Veteran most recently received a VA examination for his lumbar spine in November 2020. During the examination, the Veteran reported "daily lower back pain (5-6/10) with morning lower back stiffness that flares up with more pain (7-8/10) upon prolonged standing, walking, [and] climbing stairs." The Veteran also reported difficulty "bending forward to pick/carry objects" and with lifting objects. Regarding ROM, testing during the examination indicates that forward flexion of the thoracolumbar spine was limited to 35 degrees, extension was limited to 10 degrees, right and left lateral flexion were limited to 20 degrees, and right and lateral rotation were limited to 15 degrees, with pain on ROM resulting in functional loss. There was no additional loss after 3 repetitions. Nonetheless, following repeated use and during flare-ups, the examiner estimated that forward flexion of the thoracolumbar spine would decrease to 30 degrees, extension would decrease to 5 degrees, right and left lateral flexion would decrease to 15 degrees, and right and left lateral rotation would decrease to 10 degrees due to pain, weakness, fatiguability and/or incoordination. The examiner did not provide a diagnosis of IVDS. The Veteran relied on constant use of a cane at the time of examination. Regarding Correia, the examiner indicated that there was no objective evidence of pain on passive ROM or non-weightbearing; however, there was pain on weightbearing. Finally, regarding functional impact, the examiner stated that the Veteran's low back disability would preclude him from activities involving prolonged standing or walking, repetitive bending, repetitive going upstairs/downstairs, and lifting/carrying/pushing/pulling more than 10 pounds. There is no evidence of a diagnosis of ankylosis of the thoracolumbar or entire spine at any time during the period on appeal, and there is no evidence showing that the Veteran's motion of the spine is limited to such degree that it could be considered the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Analysis The Veteran contends that he is entitled to increased rating for his spine disability because he experiences symptoms of cracking, shooting pain, and difficulty getting out of bed. See Board Hearing Transcript, p.9. Separate Neurological Ratings prior to September 23, 2001 Given the above, there is no evidence of any neurological abnormality in the lower extremities prior to September 23, 2001. As noted above, the Veteran consistently denied radiation of pain from his lower back and the May 1994 VA examination was negative for neurological symptoms. Accordingly, separate ratings for right and left lower extremity radiculopathy prior to September 23, 2001 are not warranted. Dorsal lumbar paravertebral myositis in excess of 10 percent prior to September 23, 2001 Based on the foregoing, for the period prior to September 23, 2001, a 20 percent disability rating is warranted for the service-connected dorsal lumbar paravertebral myositis. Specifically, the evidence shows that the Veteran's symptoms more closely approximated moderate limitation of motion of the lumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5292-5021 (2001). Although the Veteran's forward flexion of the thoracolumbar spine was limited to no less than 70 degrees during the May 1994 examination, the examiner noted that there was pain on forward flexion without noting the point at which pain began. Furthermore, the examiner did not conduct any repeated use testing or estimate additional functional loss following repeated use over time or during flare-ups due to pain, weakness, fatiguability and/or incoordination. There is no indication that the Veteran was suffering from a flare-up during the May 1994 examination. Nonetheless, the Veteran's VA treatment records prior to September 23, 2001 indicate that the Veteran did periodically experience exacerbations of more severe low back pain, and at times presented with symptoms including difficulty walking, antalgic gait, and muscle spasm. These symptoms are consistent with moderate limitation of motion of the thoracolumbar spine. See also 38 C.F.R. §§ 4.40, 4.45. Given the above, the evidence is at least evenly balanced as to whether, prior to September 23, 2001, the Veteran's dorsal lumbar paravertebral myositis was manifested by symptoms approximating moderate limitation of motion of the thoracolumbar spine, to include consideration of additional functional loss following repeated use and during flare-ups due to pain, weakness, fatiguability and/or incoordination. Accordingly, resolving reasonable doubt in the Veteran's favor, prior to September 23, 2001, the criteria for a 20 percent rating for the dorsal lumbar paravertebral myositis (now characterized as lumbar myositis with bulging discs and DJD) have been met. However, prior to September 23, 2001, the criteria for a disability rating in excess of 20 percent for the dorsal lumbar paravertebral myositis were not met. In this regard, prior to September 23, 2001, the Veteran's symptoms did not more closely approximate severe limitation of motion of the lumbar spine. ROM measurements dated prior to September 23, 2001 are not consistent with severe limitation of motion of the lumbar spine; as noted above, forward flexion of the spine was limited to no less than 70 degrees. Even considering additional functional loss following repeated use over time and during flare-ups due to pain, weakness, fatiguability and/or incoordination, the preponderance of the evidence is not consistent with severe limitation of motion. Notably, the Veteran was able to work five days a week as a mail carrier, carrying a "heavy" bag, with only one noted interruption due to bedrest; this is not consistent with severe limitation of motion of the thoracolumbar spine. See VA medical certificate dated July 5, 1995. Other Diagnostic Codes, including 38 C.F.R. § 4.71a, Diagnostic Codes 5293 (IVDS) and 5295 (lumbosacral strain) (2001) have been considered. Under Diagnostic Code 5293, a 40 percent rating was warranted for severe IVDS; recurring attacks, with intermittent relief. Furthermore, under Diagnostic Code 5295, a 40 percent rating was warranted for a severe lumbosacral strain; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abdominal mobility or forced motion. Nonetheless, the Veteran did not have a diagnosis of IVDS prior to September 23, 2001 and the single prescription of bedrest described above is not consistent with severe IVDS as described by 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001). Similarly, the Veteran's symptoms prior to September 23, 2001 are not consistent with the 40 percent rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2001). In this regard, the Veteran did not have a diagnosis of a lumbar strain and there is no evidence of listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abdominal mobility or forced motion. Given the above, prior to September 23, 2001 the criteria for a disability rating in excess of 20 percent for the lumbar paravertebral myositis have not been met. Dorsal lumbar paravertebral myositis in excess of 20 percent from September 23, 2001 to July 17, 2013 A disability rating in excess of 20 percent for the service-connected lumbar myositis with bulging discs and DJD is not warranted under either the pre-amendment rating criteria in place prior to August 27, 2003 or the General Rating Formula and/or IVDS Formula. First, regarding 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2001), which served as the basis of rating prior to September 23, 2001, a disability rating in excess of 20 percent for the service-connected lumbar myositis with bulging disks and DJD is not warranted. Specifically, the preponderance of the evidence shows that the Veteran's symptoms did not more closely approximate severe limitation of motion of the thoracolumbar spine. In this regard, from September 23, 2001 to July 17, 2013, forward flexion of the thoracolumbar spine was limited to no less than 50 degrees in June 2013. Even considering additional functional loss following repeated use over time and during flare-ups due to pain, weakness, fatiguability and/or incoordination, the evidence is not consistent with severe limitation of motion of the thoracolumbar spine during this period. Notably, forward flexion of the thoracolumbar spine during the October 2002 examination was nearly full (to 80 degrees) and during the November 2004 examination was full (to 90 degrees) with no evidence of pain on ROM. Neither examiner indicated that there would be additional function loss due to pain, weakness, fatiguability and/or incoordination. Accordingly, from September 23, 2001 to July 17, 2013, the criteria for a disability rating in excess of 20 percent under the prior rating criteria have not been met. Furthermore, for the period from September 23, 2001 to July 17, 2013, a disability rating in excess of 20 percent for the service-connected lumbar myositis with bulging discs and DJD is not warranted under the post-August 27, 2003 General Rating Formula. In this regard, the preponderance of the evidence shows that the Veteran's symptoms did not more closely approximate forward flexion of the thoracolumbar spine of 30 degrees or less or favorable or unfavorable ankylosis of the thoracolumbar spine, to include consideration of additional functional loss following repeated use over time and during flare-ups due to pain, weakness, fatiguability and/or incoordination. Regarding the IVDS Formula, although the record contains doctor's notes indicating that the Veteran was prescribed 4 weeks of bedrest, the notes provide no indication of why bedrest was prescribed and, in any case, the Veteran did not have a diagnosis of lumbar IVDS until the July 2013 examination. Accordingly, from September 23, 2001 to July 17, 2013, the criteria for a disability rating in excess of 20 percent for the lumbar myositis with bulging discs and DJD have not been met under the General Rating Formula and/or IVDS Formula effective from August 27, 2003. Dorsal lumbar paravertebral myositis in excess of 20 percent from July 17, 2013 to November 20, 2020 However, for the period from July 17, 2003 to November 20, 2020, a disability rating of 40 percent for the service-connected lumbar myositis with bulging discs and DJD under the General Rating Formula is warranted. In this regard, the evidence shows that the Veteran's symptoms more closely approximated forward flexion of the thoracolumbar spine of 30 degrees or less and favorable ankylosis of the thoracolumbar spine. As noted by the July 2013 examiner, the Veteran displayed pain on forward flexion of the thoracolumbar spine beginning at 30 degrees. Additionally, the examiner noted periods of 2 hours during which the Veteran's low back would "lock" at 0 degrees forward flexion and extension; this symptom is consistent with favorable ankylosis of the thoracolumbar spine. Although the July 2013 examiner did not provide a diagnosis of ankylosis, recent caselaw suggests that the Board must nevertheless evaluate whether a veteran's symptoms constitute the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Note (5) accompanying the General Rating Formula in 38 C.F.R. § 4.71a defines favorable ankylosis as fixation of a spinal segment in neutral position (0 degrees) and unfavorable ankylosis as a condition in which the entire cervical spine, entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the coastal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Additionally, like the General Rating Formula, 38 C.F.R. § 4.71a, Diagnostic Code 5289 (2001), which rated ankylosis of the lumbar spine, provided for a 40 percent disability rating for favorable ankylosis of the lumbar spine and a 50 percent disability rating for unfavorable ankylosis of the lumbar spine. Although the Veteran experienced temporary locking of the spine, there is no evidence of any of the symptoms associated with unfavorable ankylosis of the spine during those periods. Accordingly, the Veteran's symptoms more closely approximated favorable, rather than unfavorable, ankylosis of the thoracolumbar spine during periods of locking. Given the above, the criteria for a disability rating in excess of 40 percent, which requires unfavorable ankylosis or the thoracolumbar spine or entire spine, for the lumbar myositis with bulging discs and DJD based on the General Rating Formula or pre-August 27, 2003 rating criteria have not been met. Moreover, from July 17, 2013 to November 20, 2020, a disability rating in excess of 40 percent for the lumbar myositis with bulging discs and DJD based on the IVDS formula is not warranted. Although the July 2013 examiner provided a diagnosis of IVDS, the preponderance of the evidence shows that the Veteran's symptoms did not more closely approximate incapacitating episodes requiring physician-prescribed bedrest of at least 6 weeks during the past 12 months. As noted above, the Veteran's IVDS resulted in more than one week but less than two weeks of incapacitating episodes within the past 12 months. Accordingly, the criteria for a disability rating in excess of 40 percent for the lumbar myositis with bulging discs and DJD based on the IVDS formula have not been met. Dorsal lumbar paravertebral myositis in excess of 40 percent from November 20, 2020 Finally, from November 20, 2020, a disability rating in excess of 40 percent for the service-connected lumbar myositis with bulging discs and DJD is not warranted under either the pre-August 27, 2003 rating criteria or the General Rating Formula. In this regard, there is no evidence of unfavorable ankylosis of the thoracolumbar or entire spine, or symptoms approximating unfavorable ankylosis of the thoracolumbar or entire spine, from November 20, 2020. Notably, the November 2020 examiner did not indicate that the Veteran experienced periods of "locking" or his low back but did indicate that at least some forward flexion and/or extension would be maintained following repeated use and/or during flare-ups. Accordingly, from November 20, 2020, a disability rating in excess of 40 percent for the service-connected lumbar myositis with bulging discs have not been met under either the pre-August 27, 2003 rating criteria or the General Rating Formula. Furthermore, regarding the IVDS Formula, the preponderance of the evidence shows that the Veteran's symptoms did not more closely approximate incapacitating episodes requiring physician-prescribed bedrest of at least 6 weeks during the past 12 months. Notably, the November 2020 did not provide a diagnosis of IVDS. Accordingly, the criteria for a disability rating in excess of 40 percent for the lumbar myositis with bulging discs and DJD have also not been met under the IVDS Formula. 4. Entitlement to a disability rating in excess of 20 percent for the service-connected right lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD. 5. Entitlement to a disability rating in excess of 10 percent for the service-connected left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD. The Veteran's right and left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD are currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neurological disabilities related to the sciatic nerve are evaluated under Diagnostic Code 8520. Diseases of the peripheral nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve. Id. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury to the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. With respect to Diagnostic Code 8520, a disability rating of 10 percent is warranted with mild incomplete paralysis. A disability rating of 20 percent is warranted with moderate incomplete paralysis. A disability rating of 40 percent is warranted with moderately severe incomplete paralysis. A disability rating of 60 percent is warranted with severe incomplete paralysis, with marked muscular atrophy. Finally, the highest schedular rating allowable under Diagnostic Code 8520 is for 80 percent, which is appropriate when there is complete paralysis of the sciatic nerve. The rating criteria indicate that complete paralysis is present when the foot dangles and drops, there is no active movement possible of muscles below the knee, and where flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. At the time of the July 2013 VA examination for the Veteran's lumbar spine, the Veteran experienced moderate intermittent pain and paresthesias and/or dysesthesias in the right lower extremity. No symptoms were noted for the left lower extremity. DTRs were hyperactive (3+) at the knees bilaterally but normal (2+) at the ankles bilaterally. A sensory examination revealed no abnormalities. There was no evidence of muscle atrophy. Muscle strength was normal. Finally, the examiner opined that the right lower extremity radiculopathy was moderate in severity and the left lower extremity radiculopathy was mild in severity. The November 2020 VA examiner for the Veteran's lumbar spine also recorded findings for the Veteran's right and left lower extremity radiculopathy. During the examination, the Veteran reported "constant daily pain" of "6-7/10" and persistent cramps, tingling, burning, and numbness of both legs and feet. The examiner indicated that the Veteran experienced moderate constant pain, paresthesias and/or dysesthesias, and numbness in both lower extremities. DTRs were normal in both lower extremities. However, sensation was decreased at the lower leg/ankle in both lower extremities. Muscle strength was 4/5 bilaterally on great toes extension but was otherwise normal. Overall, the examiner opined that the Veteran's lower extremity radiculopathy was moderate in severity bilaterally. Based on the foregoing, a disability rating in excess of 20 percent for the service-connected right lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD is not warranted. Furthermore, a disability rating in excess of 10 percent for the service-connected left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD prior to November 20, 2020 is not warranted. However, a 20 percent disability rating is warranted for the left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD from November 20, 2020. First, regarding the right lower extremity radiculopathy, the preponderance of the evidence shows that the right lower extremity radiculopathy does not more closely approximate severe incomplete paralysis of the sciatic nerve. In this regard, the severity of the right lower extremity radiculopathy was no more than moderate overall. Moreover, the Veteran's hyperactive DTR measurements from the July 2013 examination, decreased but preserved sense to touch at the lower leg/ankle shown by the November 2020 examination, and 4/5 muscle strength only on great toes extension during the November 2020 examination are consistent with moderate, but not severe, incomplete paralysis. Accordingly, the criteria for a disability rating in excess of 20 percent for the right lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD have not been met. Second, regarding the left lower extremity radiculopathy during the prior to November 20, 2020, the preponderance of the evidence shows that the left lower extremity radiculopathy did not more closely approximate moderate incomplete paralysis of the sciatic nerve. Specifically, prior to November 20, 2020, the severity of the left lower extremity radiculopathy was no more than mild overall. Although the July 2013 examiner noted hyperactive reflexes on great toe extension, there was no muscle atrophy or other reflex, sensory, or muscle strength deficits. Accordingly, prior to November 20, 2020, the criteria for a disability rating in excess of 10 percent for the left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD have not been met. Third, regarding the left lower extremity radiculopathy during the period from November 20, 2020, the evidence shows that the left lower extremity radiculopathy more closely approximated moderate incomplete paralysis of the sciatic nerve. In this regard, from November 20, 2020, the severity of the left lower extremity radiculopathy was moderate overall, as noted by the November 2020 examiner. Accordingly, from November 20, 2020, the criteria for a 20 percent disability rating for the left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD have been met. However, from November 20, 2020, a disability rating in excess of 20 percent for the service-connected left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD is not warranted. Specifically, the preponderance of the evidence shows that the left lower extremity radiculopathy did not more closely approximate severe incomplete paralysis of the sciatic nerve. As noted above, severity of the left lower extremity radiculopathy, as noted during the November 2020 examination, was moderate. Similarly, the Veteran's decreased but preserved sense to touch at the lower leg/ankle shown by the November 2020 examination, and 4/5 muscle strength only on great toes extension during the November 2020 examination are consistent with moderate, but not severe, incomplete paralysis. Accordingly, from November 20, 2020, the criteria for a disability rating in excess of 20 percent for the left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD have not been met. TDIU 6. Entitlement to a TDIU due to service-connected disabilities for the period on appeal from March 15, 2011 to June 20, 2013. As noted in the Introduction, an inferred claim for a TDIU has been reasonably raised for the period from March 15, 2011, the Veteran's last date of employment, to June 20, 2013, the current effective date for assignment of a TDIU. 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016); and, occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran's: work history, education, skill, and training; the Veteran's physical ability to perform work activities; and the Veteran's mental ability to perform work activities required by the Veteran's occupation. In determining unemployability, consideration should be given to the veteran's prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust, 13 Vet. App. 342. Entitlement to a TDIU does not require 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 4.3. As of March 15, 2011, the Veteran's service-connected disabilities included lumbar myositis with bulging discs and DJD, rated as 20 percent disabling, IVDS and cervical intervertebral disc displacement, rated as 20 percent disabling, right upper extremity radiculopathy associated with IVDS and cervical intervertebral disc displacement, rated as 20 percent disabling, left upper extremity radiculopathy associated with IVDS and cervical intervertebral disc displacement, rated as 20 percent disabling, right lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD, rated as 10 percent disabling, left lower extremity radiculopathy associated with lumbar myositis with bulging discs and DJD, rated as 10 percent disabling, and chronic conjunctivitis, rated as 10 percent disabling. The combined disability rating was 70 percent. Additionally, given that the lumbar myositis with bulging discs and DJD and right and left lower extremity radiculopathy, or alternatively, the IVDS and cervical intervertebral disc displacement and right and left upper extremity radiculopathy, have a common etiology and combine to a disability of at least 40 percent, the schedular criteria for assignment of a TDIU have been met as of March 15, 2011, the date that the Veteran was last employed full-time. 38 C.F.R. § 4.16(a). Accordingly, the only remaining question is whether the Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and work history as of March 15, 2011. The Board concludes that the Veteran was been unable to maintain substantially gainful employment due to multiple service-connected disabilities from March 15, 2011. The Veteran's February 2014 VA Form 21-8940 Veteran's Application for Increased Compensation based on Unemployability shows that he worked full-time for the U.S. Postal Service as a mail handler from 1993 to 2011 and last worked on March 15, 2011. He completed 4 years of high school and an electrician training program. A SSA work history report indicates that the Veteran's postal service employment required to walk for approximately 3.5 hours per day and stand for 2 hours per day. Moreover, the Veteran was expected to lift weights as heavy as 65 pounds and frequently lift weights of 10 pounds. See SSA work history report uploaded on August 28, 2014. SSA records indicate that the Veteran was granted SSA disability effective from February 1, 2011 based on a primary diagnosis of "disorders of the back" and a secondary diagnosis of "other and unspecified arthropathies." In a May 2011 SSA disability questionnaire, the Veteran reported impairments to rising from a seated position, bending, walking, sitting, and climbing stairs, among other impairments. He reported that he could walk "40 to 50 min" before having to rest for one hour. The Veteran also reported use of a walker and cane. An August 2011 SSA physical evaluation revealed an antalgic gait with "a rigid spine" and limitation of forward flexion of the thoracolumbar spine to 50 degrees. A SSA neurological evaluation concluded that the Veteran's descriptions of his impairments to walking and standing were consistent with the Veteran's lumbar, cervical, and radicular symptoms. Furthermore, the examining neurologist stated that the Veteran could not lift weights in excess of 25 pounds. See SSA neurological evaluation uploaded on August 28, 2014. A March 29, 2011 medical certificate prepared by Dr. Clavell indicates that the Veteran's diagnoses of "degeneration of cervical intervertebral disc," "brachial neuritis or radiculitis," "lesion of sciatic nerve," [t]horacic or lumbosacral neuritis or radiculitis, unspecified Radicular symptoms of lower limbs," and "myalgia and myositis, unspecified ... resulted in whole ... permanent disability" consistent with the Veteran's history of employment as a letter carrier. After considering all of the evidence of record, including the Veteran's statements and the medical evidence, the preponderance of the evidence shows that the Veteran's service-connected disabilities did preclude performance of substantially gainful employment from March 15, 2011. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 77F.3d 1350, 1354 (Fed. Cir. 2013). Specifically, the Veteran's SSA records shows diminished employability prospects due to the Veteran's service-connected disabilities. In this regard, the Veteran's physical impairments due to service-connected disabilities included limitations to walking, lifting, bending, standing, and climbing stairs. As relates to his history of employment, the Veteran would be expected to engage in the above activities on a daily basis while working as a mail carrier. Importantly, the Veteran's work history is consistent with physical, rather than sedentary, employment. TDIU determinability does not require that the Veteran be able to maintain his previous job; rather, there must be evidence that the Veteran is unable to sustain any employment. Here, the Veteran's service-connected disabilities preclude him from physically laborious employment. However, his work history has been in solely physically laborious positions and he therefore may not qualify for most sedentary positions. He has limited educational background or training and would likely not be able to maintain sedentary employment. Thus, given the lay and medical evidence indicating the Veteran's functional limitations due to his service-connected disabilities, and in light of his work experience, training, and education, the preponderance of the evidence shows that the Veteran was not able to maintain substantially gainful employment as of March 15, 2011, the Veteran's last date of employment. SMC 7. Entitlement to SMC by reason of being housebound under 38 U.S.C. § 1114(s). SMC at the housebound rate is warranted when a veteran has a single service-connected disability rated as 100 percent disabling and (1) has additional service-connected disability or disabilities independently rated as 60 percent disabling; or, (2) is permanently housebound by reason of a service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Housebound status is defined as being when the veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises and it is reasonably certain the disability or disabilities and resultant confinement will continue throughout his lifetime. Id. The term "substantially confined" is not defined by statute or regulation. However, the Court of Veterans Appeals held that leaving one's house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC housebound benefits. See Howell v. Nicholson, 19 Vet. App. 535 at 540-541 (2006). In this case, the Veteran does not have a single service-connected disability rated as 100 percent disabling or a TDIU based on a single service-connected disability. As noted above, the grant of TDIU from March 15, 2011 to June 20, 2013 is based on multiple service-connected disabilities, as was the grant of a TDIU from June 20, 2013 by the RO. See March 2021 rating decision. The Veteran's lumbar, cervical, and neurological disabilities are separately ratable and cannot be combined to achieve a single total rating in order to qualify for SMC, whether through a TDIU or on a schedular basis. VAOPGCPREC 66-91 (Aug. 15, 1991). Based on the above, SMC by reason of being housebound must be denied as a matter of law. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). DEA 8. Entitlement to an effective date prior to June 20, 2013 for eligibility to DEA benefits under 38 U.S.C. Chapter 35. Under 38 C.F.R. § 3.155(d)(2), "VA will adjudicate as part of [a] claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g., entitlement to 38 U.S.C. Chapter 35 Dependents' Educational Assistance benefits...). The claimant may, but need not, assert entitlement to ancillary benefits at the time the complete claim is filed." In this case, entitlement to an earlier effective date for the award of eligibility for DEA benefits under 38 U.S.C. Chapter 35, currently effective from June 20, 2013, arises from the grant of TDIU from March 15, 2011. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Where a claim is reopened after a prior final disallowance based on the receipt of new and material evidence, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). DEA benefits are payable to the child, spouse, or surviving spouse of a veteran if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. § 3510; 38 C.F.R. § 3.807(a). In the above decision, a TDIU has been assigned from March 15, 2011. Therefore, the Veteran has permanent and total disability status as of March 15, 2011. Eligibility for DEA benefits from March 15, 2011 is therefore established. REASONS FOR REMAND Entitlement to SMC based on the need for aid and attendance under 38 U.S.C. § 1114(l). The Veteran contends that he is entitled to SMC based on the need for aid and attendance. SMC based on the need for aid and attendance is warranted when a veteran, as a result of service-connected disability, is so helpless as to need regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following factors will be accorded consideration in determining the need for regular aid and attendance: inability of veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability of veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in this paragraph be found to exist, nor is it necessary that there be a constant need for aid and attendance. Id. However, a veteran may not receive SMC under 38 U.S.C. § 1114(l) based on the need for aid and attendance and SMC under 38 U.S.C. § 1114(s) at the statutory housebound. As regular aid and attendance set forth under 38 U.S.C. § 1114(l) is the greater monetary award, SMC under 38 U.S.C. § 1114(l) will be assigned if the criteria for SMC under 38 U.S.C. § 1114(s) are also met. Compare 38 U.S.C. § 1114(l) with 38 U.S.C. § 1114(s). As noted above, during the June 2018 Board hearing, the Veteran contended that he is "housebound" due to disabilities associated with his back and must "stay home for rest" to manage his pain. See June 2018 Board hearing transcript, p. 14. Moreover, the Veteran's spouse stated that she must help the Veteran get up, bathe, and get him to the living room and sofa. The Veteran's spouse also indicated that she prepares the Veteran's meals and gives him his medications. Finally, the Veteran's spouse stated, "I take care of him the whole day because he is afraid to get hurt because he . . . cannot stay up. He falls down when he is like that. So I have to help him all the time." Id. at 11-12. Furthermore, of record is a November 2020 VA aid and attendance or housebound examination. The examiner noted that the Veteran lived with his wife and son in a two-story house, that house chores were performed by his wife and son, and that meals were prepared by his wife. At the time of examination, the Veteran was still able to drive. Moreover, the Veteran was able to occasionally go fishing at a location away from his home. However, he required use of a cane for walking long distances. Similarly, the examiner indicated that the Veteran experienced occasional imbalance affecting his ability to ambulate. Regarding ability to perform self-care skills, the examiner concluded that the Veteran could perform "all functions." Moreover, the examiner found that the Veteran could walk up to half of a mile with use of a cane and was "unrestricted" with regard to ability to leave the home. However, in formulating the above opinions, the November 2020 examiner erroneously stated in the report that the Veteran did not have limitation of motion or deformity of the lumbar or cervical spines and that function of the upper and lower extremities was normal. In this regard, the July 2013 and November 2020 examinations for the Veteran's lumbar spine indicate that the Veteran did, in fact, experience significant limitation of motion of the lumbar spine as well as symptoms of moderate constant pain, paresthesias and/or dysesthesias, and/or numbness in both lower extremities. Furthermore, a November 2020 examination for the Veteran's cervical spine also revealed significant limitation of motion of the cervical spine and mild intermittent pain, paresthesias and/or dysesthesias, and numbness in both upper extremities. Given the above, the November 2020 examination for aid and attendance or housebound status, which was rather puzzlingly prepared by the same examiner who conducted the November 2020 lumbar and cervical examinations, is based on inaccurate factual premises about the Veteran's medical history and therefore cannot support a decision on the claim. Accordingly, remand is warranted for a new VA examination for SMC based on the need for aid and attendance. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine whether he meets the requirements for special monthly compensation based on the need for regular aid and attendance or by reason of being permanently housebound. The claims folder, including a copy of this remand, must be reviewed by the examiner and the examiner must indicate review of the claims file in the report. The examiner should take into account any impairment stemming from the Veteran's disabilities of the lumbar and cervical spines and radiculopathy of the upper and lower extremities. The criteria for establishing the need for aid and attendance include consideration of whether the appellant is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or whether he is a patient in a nursing home because of mental or physical incapacity; or whether he establishes factually a need for aid and attendance under the criteria set forth under 38 C.F.R. § 3.352(a) (inability to dress/undress, or to keep ordinarily clean/presentable; frequent adjustment of special prosthetic/orthopedic appliances requiring the aid of another; inability to feed himself; inability to attend to wants of nature; or incapacity, physical or mental, that requires assistance on a regular basis to protect from hazards/dangers incident to daily environment). If the Veteran is in need of aid and attendance due to his nonservice-connected disabilities, that should also be noted. The examiner should address all factors identified in 38 C.F.R. § 3.352(a). L. Baskerville Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.