Citation Nr: 21005729 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 12-02 126 DATE: February 2, 2021 ORDER Entitlement to an initial evaluation in excess of 20 percent for lumbar strain with myofascial pain, scoliosis, and degenerative joint disc and joint disease for the period from August 25, 2010 to March 16, 2020 is denied. Entitlement to an evaluation in excess of 40 percent for lumbar strain with myofascial pain, scoliosis, and degenerative joint disc and joint disease for the period beginning March 17, 2020 is denied. Entitlement to an initial evaluation in excess of 20 percent for sciatic nerve radiculopathy of the right lower extremity is denied. Entitlement to an initial evaluation of 10 percent, but no higher, for left lower extremity radiculopathy with sciatic nerve impairment associated with lumbar strain with myofascial pain, scoliosis, and degenerative joint disc and joint disease is granted. Entitlement to a total disability rating for individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the period from August 25, 2010 to March 16, 2020, the Board finds that the evidence of record does not show that the Veteran’s lumbar spine disability resulted in forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 2. The Veteran has not had unfavorable ankylosis of the entire thoracolumbar spine at any time during the entire period on appeal. 3. The evidence of record does not show more than a moderate level of incomplete paralysis involving sciatic nerve of the right side. 4. The evidence of record does not show more than a mild level of incomplete paralysis involving sciatic nerve of the left side. 5. The evidence shows that the Veteran has had substantially gainful employment throughout the entire period on appeal. CONCLUSIONS OF LAW 1. For the period from August 25, 2010 to March 16, 2020, the criteria for an initial evaluation in excess of 20 percent for lumbar strain with myofascial pain, scoliosis, and degenerative joint disc and joint disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5237 (2019). 2. For the period beginning March 17, 2020, the criteria for an evaluation in excess of 40 percent for lumbar strain with myofascial pain, scoliosis, and degenerative joint disc and joint disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5237 (2019). 3. The criteria for an initial evaluation in excess of 20 percent for sciatic nerve radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2019). 4. The criteria for an initial evaluation of 10 percent, but no higher, for left lower extremity radiculopathy with sciatic nerve impairment associated with lumbar strain with myofascial pain, scoliosis, and degenerative joint disc and joint disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2019). 5. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to February 1989. This case is before the Board of Veterans’ Appeals (Board) on appeal from November 2011 and March 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In December 2015, April 2018, and January 2020, the Board remanded the matters for further development. Now the matters are returned to the Board. The Board notes that the Veteran’s service connection claim for left lower extremity radiculopathy secondary to his lumbar spine disability has been granted since the January 2020 Board remand order. See August 2020 Rating Decision. Although not appealed by the Veteran, the Board takes jurisdiction of the issue of increased rating for radiculopathy of the left lower extremity as it is part and parcel of the issue of the increased rating claim for lumbar spine disability on appeal. Accordingly, the Board has characterized the issues on appeal so as to include an increased rating claim for left lower extremity radiculopathy. Increased ratings A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2019). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2019). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (2019) (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2019). The intent of Rating Schedule is to recognize actually 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 (2019). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). Otherwise, it will assign the lower rating. Id. 1. Lumbar spine disability The Veteran was assigned a 20 percent disability rating for his lumbar spine disability. Then, the RO increased the rating to 40 percent effective March 17, 2020. See August 2020 Rating Decision. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Pursuant to Diagnostic Code 5237, lumbosacral strain is evaluated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. 38 C.F.R. § 4.71a (2019). Here, the evidence of record does not show that the Veteran has IVDS; therefore, his spine disability will be rated under the General Formula. Under the General Formula, in pertinent part, a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a maximum 100 percent evaluation is warranted for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, General Formula (2019). On February 2013 VA examination for back conditions, the examiner noted the Veteran’s diagnosis of chronic lumbar strain with myofascial pain, scoliosis and degenerative disc and joint disease. The Veteran reported continuous daily pain of achy and stabbing type with a pain level of 4 to 6 out of 10. As to flare-ups, the Veteran stated that he had experienced them twice per month in the previous year where the pain level increased to 10 out of 10. The Veteran provided that his muscles give out and he falls during a flare-up, and it improves with lying on his back, relaxing, and taking Ibuprofen. The range of motion was measured at: forward flexion to 60 degrees with painful motion beginning at 30 degrees; extension to 30 degrees with painful motion beginning at 20 degrees; right lateral flexion to 30 degrees or greater with painful motion beginning at 25 degrees; left lateral flexion to 30 degrees or greater with painful motion beginning at 30 degrees or more; right lateral rotation to 30 degrees or greater with painful motion beginning at 20 degrees; and left lateral rotation to 30 degrees or greater with painful motion beginning at 30 degrees or greater. The Veteran was able to perform repetitive-use testing with 3 repetitions and the range of motion after the testing was the following: forward flexion to 45 degrees; extension to 25 degrees; right lateral flexion to 25 degrees; left lateral flexion to 30 degrees or greater; and both right and lateral rotations to 30 degrees or greater. The examiner noted weakened movement, excess fatigability, pain on movement, and interference with sitting, standing and/or weight-bearing as contributing factors to additional limitation of range of motion of the thoracolumbar spine after repetitive use. The Veteran had localized tenderness or pain to palpation to musculature with greater tenderness in the right side than the left side. The Veteran had guarding or muscle spasm of the thoracolumbar spine which is severe enough to result in abnormal spinal contour. The examiner provided that the Veteran does not have IVDS of the thoracolumbar spine. The Veteran’s use of a weight-lifting belt when working out one to two times per week was noted. The examiner provided that the Veteran’s thoracolumbar spine condition impacts his ability to work as he is required to have accommodations from work such as not having to travel too much and having an option to work from home if needed due to low back pain. During the September 2015 hearing, the Veteran testified that his back pain has increased and it has been keeping him from moving around as much. The Veteran stated that it is reflected by his weight gain of 30 pounds in the last couple of years. He also provided that he tries to hold back on the pain medication on weekdays since it tends to make him loopy and affects his ability to work. On June 2017 VA examination for back conditions, the examiner noted the Veteran’s diagnosis of degenerative arthritis of the lumbar spine with lumbar strain, scoliosis and myofascial pain. The Veteran reported daily recurrent low back pain with a pain level of 5 out of 10, which is aggravated by prolonged sitting, standing, walking, and lifting. The Veteran stated that he has flare-ups once a week where the pain level increases to 10 out of 10, and he has to have bed rest for one to three days for flare-ups. The range of motion was measured at: forward flexion to 40 degrees; extension to 20 degrees; both right and left lateral flexions to 20 degrees; and both right and left lateral rotations to 25 degrees. The Veteran exhibited pain in all range of motion testing. The examiner noted that the range of motion itself contributes to a functional loss due to reduced mobility. The Veteran was able to perform repetitive-use testing with at least 3 repetitions without additional loss of function or range of motion. The Veteran had tenderness on palpation over the entire lumbar spine and had point tenderness over L1-L2. The examiner stated that it would be speculative to provide range of motions during a flare-up or repetitive use over time since the Veteran was not having a flare-up during the examination. The Veteran had guarding and muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. The examiner noted less movement than normal, deformity, disturbance of locomotion, and interference with sitting and standing as additional contributing factors of the disability. The Veteran’s muscle strength testing was all normal and he did not have muscle atrophy. The Veteran did not have ankylosis of the spine or IVDS of the thoracolumbar spine. The examiner provided that the Veteran’s lumbar spine condition will impact his ability to do any job that requires prolonged sitting, standing, walking, or lifting. A December 2018 MRI of the lumbar spine showed multiple hemangiomas of no clinical concern, mild pathology, no acute findings, no central spinal cord impingement, and small posterior anular tears known to cause pain. In October 2019, a private medical examiner completed a back conditions disability benefits questionnaire (DBQ). It was noted that bending forward causes an increase in pain and decrease in strength often leads to falls during the Veteran’s unpredictable flare-ups. The range of motion was reported as the following: unable to do forward flexion to 90 degrees; unable to do extension to 30 degrees; both right and left lateral flexions to 10 degrees; and both right and left lateral rotations to 10 degrees. The private examiner noted that the Veteran was able to perform repetitive use testing without a change in range of motion afterwards, but he had abnormal gait due to muscle spasms and guarding. The private examiner provided that the Veteran’s lumbar spine disability impacts his ability to work since the pain is constant with episodic flare-ups which require positional changes or lying down for comfort. Based on above, for the period from August 25, 2010 to March 16, 2020, the Board finds that the evidence of record does not show that the Veteran’s lumbar spine disability resulted in forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The Board has considered the Veteran’s reported functional loss during a flare-up or repeated use over time, but concluded that it does not amount to limitation of forward flexion of the thoracolumbar spine to 30 degrees or less. Thus, the Board finds that the Veteran’s symptoms and limitations due to his lumbar spine disability more approximate the current 20 percent disability rating for that period. Consequently, the Board finds that the Veteran’s entitlement to an initial evaluation in excess of 20 percent for lumbar strain with myofascial pain, scoliosis, and degenerative joint disc and joint disease for the period from August 25, 2010 to March 16, 2020 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237 (2019). On March 2020 VA examination for back conditions, the Veteran reported constant low back pain in both sides with a pain level of 5. The Veteran stated that he can stand about 20 minutes and walk on level ground about five minutes due to his back pain. It was noted that the Veteran either has difficulties with or cannot do the physical aspects of labor such as prolonged standing or walking, running, lifting heavy objects, climbing, bending, or stooping. As to flare-ups, the Veteran reported that his pain level increases to a level of 10, he can stand about 3 to 5 minutes and walk about 20 to 30 feet, and unable to go to work due to the intense pain. The range of motion was measured at: forward flexion to 30 degrees; extension to 10 degrees; right and left lateral flexions to 20 degrees; right lateral rotation to 15 degrees; and left lateral rotation to 20 degrees. Pain was noted during all range of motion testing. There was objective evidence of localized tenderness or pain on palpation to his low back. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional loss of function or range of motion afterwards. The examiner described the Veteran’s limitation in functional ability with repeated use over a period of time as the following: forward flexion to 25 degrees; extension to 5 degrees; right and left lateral flexions to 15 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 15 degrees. Further, the examiner described the Veteran’s limitation in functional ability with flare-ups as the following: forward flexion to 20 degrees; extension to 0 degrees; right and left lateral flexions to 10 degrees; right lateral rotation to 5 degrees; and left lateral rotation to 10 degrees. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine, and his muscle strength testing was all normal without muscle atrophy. The Veteran did not have IVDS of the thoracolumbar spine or ankylosis of the spine. The examiner noted the Veteran’s occasional use of a cane. As stated above, in order to warrant a next higher evaluation of 50 percent for the period beginning March 17, 2020, the evidence must show unfavorable ankylosis of the Veteran’s entire thoracolumbar spine. However, the Board finds that the Veteran has not had unfavorable ankylosis of the entire thoracolumbar spine at any time during the entire period on appeal. Thus, the Board finds that the Veteran’s entitlement to an evaluation in excess of 40 percent for lumbar strain with myofascial pain, scoliosis, and degenerative joint disc and joint disease for the period beginning March 17, 2020 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237 (2019). 2. Right lower extremity radiculopathy A 20 percent evaluation was initially assigned for the Veteran’s right lower extremity sciatic nerve radiculopathy from September 4, 2015. Diseases involving sciatic nerve are evaluated under Diagnostic Codes 8520, 8620, or 8720. The Board notes that the Veteran’s right lower extremity radiculopathy is currently evaluated under Diagnostic Code 8620 for neuritis. However, as the Board finds that Diagnostic Code 8520 is more appropriate for evaluating the Veteran’s current symptoms involving sciatic nerve, his right lower extremity radiculopathy will be evaluated under Diagnostic Code 8520. Under Diagnostic Code 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 incomplete paralysis with marked muscular atrophy; and a maximum 80 percent 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, Diagnostic Code 8520 (2019). During the September 2015 hearing, the Veteran testified that he has radiating pain and numbness in his legs, and he can only sit for about 45 minutes without having numbness symptoms. The Veteran described that the numbness radiates down in an angular direction to buttocks and the legs into the calves. On June 2017 VA examination for back conditions, the examiner noted the Veteran’s diagnosis of right lumbar radiculopathy. The examiner noted that the Veteran is scheduled for an EMG/NCV examination to further examine his radiculopathy. The examiner noted the Veteran’s following symptoms affecting his right lower extremity: mild constant pain; severe intermittent pain; moderate paresthesias and/or dysesthesias; and moderate numbness. The examiner provided that there were no other signs or symptoms of radiculopathy. The examiner indicated that the Veteran’s has moderate level of radiculopathy involving L4/L5/S1/S2/S3 nerve roots (sciatic nerve) of the right side. On an August 2017 electrodiagnostic procedure, the Veteran’s peripheral neuropathy in lower extremities was found. In an October 2019 Peripheral Nerve Conditions DBQ, the private examiner reported the Veteran’s moderate symptoms of constant pain, paresthesias and/or dysesthesias, and numbness in his lower extremities. It was noted that the Veteran demonstrated 3/5 in muscle strength testing of knee extension, ankle plantar flexion, and ankle dorsiflexion. The private examiner indicated that the Veteran had muscle atrophy in his bilateral lower extremities, but did not provide any measurements. The private examiner further noted that the Veteran did not have any incomplete paralysis involving sciatic nerve or any other nerves of the lower extremity. On March 2020 VA examination for back conditions, the examiner noted the Veteran’s diagnosis of sciatic nerve radiculopathy. The Veteran reported radiating pain from his lower back to both legs into the sides of the calves with more pain in the right leg than the left leg. The Veteran’s deep tendon reflexes for the right knee and ankle were noted as 2+ (normal), and he did not have any decreased sensation to light touch in the right lower extremity. The examiner noted the Veteran’s moderate level of constant and intermittent pain, mild paresthesias and/or dysesthesias, and severe numbness affecting his right lower extremity. The examiner indicated that sciatic nerve is involved with the Veteran’s current symptoms. Based on above, the Board finds that the Veteran’s radiculopathy of the right lower extremity involving sciatic nerve has been resulting in moderate incomplete paralysis. As stated above, the evidence must show a moderately severe incomplete paralysis in order to warrant a next higher evaluation of 40 percent, but the Board finds that the evidence does not show such severity. Consequently, the Board finds that the Veteran’s entitlement to an initial evaluation in excess of 20 percent for sciatic nerve radiculopathy of the right lower extremity is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2019). 3. Left lower extremity disability A noncompensable (0 percent) disability rating was assigned for the Veteran’s left lower extremity radiculopathy with sciatic nerve impairment associated with service-connected lumbar spine disability from March 17, 2020. On March 2020 VA examination for back conditions, the examiner noted the following symptoms affecting the Veteran’s left lower extremity: no constant pain; moderate level of intermittent pain; mild paresthesias and/or dysesthesias; and severe numbness. The Veteran’s deep tendon reflexes for the left knee and ankle were noted as 2+ (normal), and he did not have any decreased sensation to light touch in the left lower extremity. As discussed above, the Veteran indicated that his pain level of the left extremity is not as severe as the right extremity. The examiner further provided that the Veteran’s radiculopathy can be the case in which there are only symptoms without objective impairment shown during a focused neurological examination due to the mild nature of the radiculopathy. In light of the above, the Board finds that the Veteran has a mild level of incomplete paralysis involving sciatic nerve of the left side. Thus, the Board finds that the Veteran’s entitlement to an initial evaluation of 10 percent, but no higher, for left lower extremity radiculopathy with sciatic nerve impairment associated with lumbar strain with myofascial pain, scoliosis, and degenerative joint disc and joint disease is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2019). A next higher evaluation of 20 percent for the disability is not warranted as the evidence of record does not show a moderate level of incomplete paralysis affecting the left lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2019). 4. Urinary and bowel incontinence and erectile dysfunction symptoms With the private examiner’s indication in the October 2019 DBQ report that the Veteran’s urinary and bowel incontinence and erectile dysfunction symptoms are secondary to his service-connected lumbar spine disability, a medical opinion regarding the matter was obtained in March 2020. However, the March 2020 examiner found that the Veteran does not suffer from neurogenic symptoms including bladder or bowel issues, or erectile dysfunction based on the history and the physical examination of the Veteran. The examiner provided that the history of the Veteran’s bladder and bowel symptoms is only nocturnal, but a neurogenic bladder and bowel condition would be constant regardless of the time of the day. Moreover, the examiner pointed out that the neurological examination of the Veteran’s lower extremities does not show any current neurological impairments, and such abnormalities would have been shown with neurogenic component arising from his spinal cord. The examiner also provided that the Veteran’s history of erectile dysfunction would not be of a neurogenic variety. The examiner explained that the same neurological pathways responsible for the bladder and bowel’s proper functioning are also involved with the Veteran’s ability to have enough erectile functioning, but there is no impairment of those nervous system pathways for the bladder or bowel. The examiner provided that the Veteran had significant risk factors of erectile dysfunction at the time of its onset with his age of 50 years and obesity. The Board assigns more probative weight to the March 2020 examiner’s opinion then the private examiner’s report of October 2019, because the March 2020 examiner provided sufficient rationale after a review of the Veteran’s history in conjunction with an in-person examination of the Veteran. The Board notes that the private examiner did not provide any rationale or explanation in the October 2019 DBQ report to support her findings. As such, the Board finds that the Veteran’s other symptoms raised in the record, including bladder or bowel incontinence and erectile dysfunction, are not part and parcel of his increased rating claim for the service-connected lumbar spine disability. Thus, the Board did not take jurisdiction of the issues related to those symptoms in this decision. TDIU Further, the Veteran is seeking entitlement to TDIU. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a) (2019). The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a)(2) (2019). Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341 (2019). Here, the Veteran is currently service-connected for lumbar strain with myofascial pain, scoliosis and degenerative disc and joint disease at 40 percent disabling from March 17, 2020; sciatic nerve radiculopathy of the right lower extremity at 20 percent disabling from September 4, 2015; and left lower extremity radiculopathy with sciatic nerve impairment associated with the lumbar spine disability at 10 percent disabling from March 17, 2020. As such, the Veteran’s current combined disability rating is 60 percent. However, the record shows that all of the Veteran’s service-connected disabilities have stemmed from a single in-service injury; thus, the Board concludes that these service-connected disabilities should be considered as one disability under 38 C.F.R. § 4.16(a)(2). Thus, the Board finds that the Veteran meets the schedular criteria for TDIU as he has one disability ratable at 60 percent. During the September 2015 hearing, the Veteran testified that he is currently working full time as a field sales representative. He provided that he now works from home completely due to his back and sleep apnea condition although he used to be a vice president and senior vice president at a different company until 2010. He stated that his previous job required frequent traveling, so he had to resign from that position due to his back and sleep apnea conditions after 8 years of working in good standing. The Veteran testified that his resignation from the previous position resulted in 30 to 35 percent of pay decrease, and expressed his concern with having to have the TDIU benefits in the near future considering his increasing symptoms of the back condition. The Veteran did not submit a VA Form 21-8940 for TDIU application, but he competently testified during the hearing as to his current employment status, recent work history, and a current salary of $162,000. The Board notes that the Veteran’s service connection claim for sleep apnea has been denied, and that decision has not been appealed as of the date of this decision. See March 2020 Rating Decision. As such, the impact of the Veteran’s sleep apnea on his employability cannot be considered as a basis for his TDIU. 38 C.F.R. § 3.341 (2019). The question for entitlement to TDIU is not whether the Veteran is unemployed or has difficulty obtaining employment, but whether he is incapable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, despite the Veteran’s reports that he has missed some time from work due to lumbar spine flare-ups and had to make accommodations of working from home due to his lumbar spine condition, the evidence clearly shows that the Veteran has been working full time during the entire period on appeal. The Veteran’s functional limitations of inability to sit, stand or walk for a prolonged period of time and having to reposition himself frequently due to back pain is reflected in the evidence, but such impairment is recognized by the disability ratings assigned for his service-connected disabilities. Based on above, the Board finds that the Veteran has been having substantially gainful employment throughout the entire period on appeal and his entitlement to TDIU is not warranted. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.