Citation Nr: 21007144 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-00 384 DATE: February 8, 2021 ORDER Entitlement to an increased rating for right knee degenerative joint disease with chondromalacia, currently evaluated as 10-percent disabling, is denied. Entitlement to an increased rating for right lower extremity radiculopathy, currently evaluated as 10-percent disabling, is denied. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy prior to September 4, 2020, and in excess of 20 percent since, is denied. Entitlement to an increased rating for right shoulder bursitis with impingement, currently evaluated as 20-perent disabling, is denied. Entitlement to an increased rating for a spine disability (now characterized as degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) and lumbosacral strain but also previously considered as degenerative joint disease of multiple joints, including of the thoracolumbar spine, and as lumbar spine spondylosis with degenerative joint disease), evaluated as 10-percent disabling prior to July 6, 2015, as 20-percent disabling from July 6, 2015, and as 40-percent disabling since September 4, 2020, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s right knee flexion has not been limited to 45 degrees or less, and his extension has not been limited to 10 degrees or greater. 2. The most probative evidence is against finding that his right lower extremity radiculopathy has been more than mild at any time during the rating period on appeal. 3. The most probative evidence is against finding that his left lower extremity radiculopathy was more than mild prior to September 4, 2020 or more than moderate since. 4. The most probative evidence is against finding that his right shoulder is limited in motion to midway between his side and shoulder level or more severely limited. 5. The most probative evidence is against finding that, prior to July 6, 2015, his back disability resulted in forward flexion of his thoracolumbar spine not greater than 60 degrees, or the combined range of motion of his 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; or that prior to September 4, 2020, his back disability resulted in forward flexion of his thoracolumbar spine limited to 30 degrees or less or involved favorable ankylosis of his entire thoracolumbar spine; or that it has resulted in ankylosis (favorable or unfavorable) at any time during the rating period on appeal. 6. The most probative evidence of record is against finding that his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are not met for an increased rating for the right knee degenerative joint disease with chondromalacia. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5260. 2. The criteria are not met for a rating in excess of 10 percent for the right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.124a, DC 8620. 3. The criteria are not met for a rating in excess of 10 percent for the left lower extremity radiculopathy prior to September 4, 2020 or in excess of 20 percent since. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.124a, DC 8520. 4. The criteria are not met for a rating in excess of 20 percent for the right shoulder bursitis with impingement. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. 5. The criteria are not met for increased ratings for the thoracolumbar spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5237-5243. 6. The criteria are not met for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These claims have now been pending for more than eight years, and the Veteran has been afforded examinations in February 2012, October 2013, January 2019, and September 2020. In May 2018, the Board remanded the claims because it found that the October 2013 examinations did not comply with the Court’s holdings in Correia v. McDonald, 28 Vet. App, 158 (2016), and Sharp v. Shulkin, 29 Vet. App., 26 (2017), and because some claims were inextricably intertwined with those requiring a remand. In May 2018, the Board again remanded the claims because it found that a January 2019 Disability Benefits Questionnaire (DBQ) was inadequate and, therefore, that new examinations were needed to ascertain more information with regard to flare-ups of symptoms; in addition, the Board found that “retrospective” opinions were needed to try and capture the severity of the Veteran’s disability at the time of the 2013 examinations. The most recent 2020 DBQ for the Veteran’s right shoulder disability does not discuss the frequency and duration of his flare-ups or provide a retrospective opinion. However, importantly, when reviewing the record as a whole, to include the specific findings at the examinations, and as discussed in further detail below, the Board concludes there is sufficient evidence to accurately evaluate his right shoulder disability for the entirety of the rating period on appeal, to include during a flare-up since there is sufficient evidence to glean or “estimate the functional loss that would occur during flares.” Sharp, 29 Vet. App. at 33. Thus, another remand would merely delay adjudication of the claim without any benefit to the Veteran. The Board also finds that there has been substantial compliance with the directives of its remand in that the examiner provided the estimated loss of function/range of motion during a flare-up. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (clarifying that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). While prior examinations were found to be inadequate because they were incomplete, they still provide pertinent evidence for rating the Veteran’s disabilities, so they have value and will be considered by the Board, nonetheless, along with the other evidence of record, including the retrospective opinions since obtained to supplement the inadequacies in those prior examinations. Consider also that, in March 2020, the Veteran’s representative waived the right to provide an informal hearing presentation (IHP) or supplemental argument. Thus, the Board may proceed to adjudicating the claims. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, premature or excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).   In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. 1. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease (DJD), i.e., arthritis with chondromalacia The Veteran’s right knee disability is evaluated as10-percent disabling under hyphenated DC 5003-5260 effective from February 11, 2013. DC 5003 explains that, when there is noncompensable limitation of motion (meaning it would be rated as 0-percent disabling under the appropriate DC), a rating of 10 percent nonetheless is for application for each major joint or group of minor joints affected by the limitation of motion. So, essentially, when there is arthritis, the Veteran is entitled to the minimum 10 percent rating even absent a level of limitation of motion that otherwise would support assignment of this minimum compensable rating. The Veteran would be entitled to a higher rating for his right knee under DC 5260 if he had flexion limited to 30 degrees (20 percent) or to 15 degrees (30 percent). The Board finds that the evidence does not support a higher rating because motion of his right knee is not restricted to these greater extents. A February 2012 VA examination report notes that the Veteran had right knee flexion to 140 degrees, and hyperextension to 5 degrees. His knee was stable, with no effusion and no tenderness. Importantly, there was no pain with motion and repeated motion did not decrease the range of motion. An April 2013 VA physical therapy consult note also reflects that the Veteran had normal range of motion of the knee. An October 2013 DBQ reflects that the Veteran complained of progressive pain, stiffness, and weakness. Upon examination, he had flexion to 130 degrees with pain beginning at 120 degrees. He had full extension with no objective evidence of pain. After repetitive use testing, the Veteran had the same degree of motion. He had full muscle strength and full stability. The Veteran reported that, during a flare up, his prolonged walking/standing/sitting and squats, stairs, jogging, jumping, and lifting/carrying are limited. A September 2020 retrospective opinion surmises that, during a flare-up, the flexion would be reduced by 10 degrees; this would account for his increased pain but also for the fact that his ability to work was not affected. Lay statements dated in 2014 from the Veteran’s girlfriend and father reflect their observations, to include that the Veteran cannot stand for long periods of time. However, the Board also has considered that the Veteran has been noted in the clinical records to be “very active” on his feet and/or to exercise every day or at least 3 times a week, or that his cardio is limited due to his left knee pain (see, e.g., December 2012, April 2013, April 2017, May 2018, August 2018). In addition, a January 2019 DBQ indicates he walks approximately 20 minutes a day for fitness. This January 2019 DBQ also indicates the Veteran reported having increased right knee pain, stiffness, popping on the sides with bending, and occasional swelling. As mentioned, he reported walking approximately 20 minutes a day for fitness. For flare-ups, he related that his right knee pops on the sides with bending, also that it hurts with squatting, kneeling, lifting, and running, or when sitting, standing, or walking for too long. Upon examination, he had flexion to 105 degrees and full extension, so to 0 degrees. There was no evidence of pain with weight bearing, and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Pain was observed on examination but did not result in functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss. He had full muscle strength and full stability. The examiner indicated the Veteran reported pain, verbally and/or by facial expression (wincing), with passive and active and repetitive range of motion. However, there was no pain with either non-weight-bearing or weight-bearing. A September 2020 DBQ reflects the Veteran’s statement that his right knee is his “good knee” and does not bother him. Upon examination, he had full extension, again, meaning to 0 degrees, and flexion to 110 degrees – albeit with pain noted on examination. The severity of pain on palpation or localized tenderness was noted to be mild. The decreased range of motion was noted to cause decreased ability to stand, run, walk, and sit for periods of time. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with no additional loss of function or loss of range of motion. The examiner stated that, after repetitive use over time, the range of motion would be decreased to 100 degrees of flexion; extension would remain the same, so still to 0 degrees. The examiner also stated that, during a flare up, the range of motion would be decreased to 100 degrees of flexion; but extension would remain the same. In essence, the Veteran would lose approximately 10 degrees flexion during a flare up or repetitive use. He had full muscle strength and no instability. Assuming that, during a flare-up (i.e., when his disability is most problematic) or after repetitive use, the Veteran loses 10 degrees of flexion, he would still have had flexion to 130 degrees in 2012, to 120 degrees in 2013, and to 95 degrees in 2019, which all far exceed what is required for a higher evaluation. In the alternative, assuming he had limitation to 100 degrees (as noted in 2020) throughout the majority of rating period on appeal during a flare-up or after repetitive use, he still would have far greater range of motion than required for a higher evaluation. In essence, even if he had a flare-up for 99.9 percent of the time, he still would not be entitled to a higher rating because even the most minimum 0 percent (i.e., noncompensable) rating under DC 5260 requires flexion limited to 60 degrees. He has far greater flexion, even considering his pain. The Board is mindful of a precedent opinion of VA’s General Counsel, VAOPGCPREC 9-2004 (Sept. 17, 2004), indicating a claimant who has both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, in this claim at hand, there is no time period during which the Veteran’s disability has manifested in both limitation of flexion to a compensable degree and limitation of extension to a compensable degree. Essentially, he was granted a 10 percent rating to compensate him for the effect his chronic pain has on his range of motion, even accepting that he does not have sufficient limitation of motion in his right knee, per se, to otherwise justify this 10 percent rating (which, according to DC 5003, is the minimum rating to be assigned in this circumstance). His extension has been full, i.e., normal, to 0 degrees, so 0-percent disabling according to DC 5261. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, pain itself does not constitute functional loss. The Court in Mitchell explained that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Rather, the pain “must actually affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance’ [under] 38 C.F.R. § 4.40 in order to constitute functional loss” warranting a higher rating. See id. at 43. Although the Veteran has reported pain, the objective clinical findings reflect that he still has significant range of motion and, as such, his existing 10 percent rating under DC 5260 sufficiently compensates him – again, even when considering his pain. The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The evidence also is against finding that a separate rating is warranted for instability. A separate rating may be assigned for instability (DC 5257) apart from the rating assigned based, instead, on limitation of motion (DCs 5003, 5010, 5260 and 5261). See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). However, the evidence consistently reflects that the Veteran does not have recurrent subluxation or lateral instability. He is competent to report what he feels or perceives to be instability and giving out of his knee, and the Board cannot categorically give more probative weight to the medical findings concerning this in relation to his lay testimony. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Notably, however, he has not contended that his right knee is unstable, and, as mentioned, all the examinations note normal stability of this knee. Moreover, the Veteran does not have malunion or nonunion of the tibia and fibula (DC 5262), symptomatic or dislocated cartilage (DCs 5259 and 5258) or genu recurvatum with weakness and insecurity in weight-bearing (DC 5263). He therefore cannot receive a separate rating or additional compensation under these other DCs, either. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that that ratings under DCs 5257 and 5260 and 5261 do not necessarily preclude ratings under DCs 5258 and 5259, i.e., the “meniscal codes”). In sum, for all these reasons and bases, a higher rating is not warranted. 2. Entitlement to increased ratings for right lower extremity radiculopathy AND 3. left lower extremity radiculopathy The Veteran’s right lower extremity radiculopathy is rated as 10-percent disabling effective from July 6, 2015. His left lower extremity radiculopathy was rated as 10-percent disabling from July 6, 2015 to September 4, 2020, and instead has been rated as 20-percent disabling since. These radiculopathies are rated under DCs 8520 and 8620. DC 8520 concerns paralysis (complete or incomplete) of the sciatic nerve and DC 8620 pertains to neuritis of this same nerve, so the rating criteria are the same. According to DCs 8520 and 8620, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately-severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and a maximum 80 percent rating is warranted for complete paralysis (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost).   These descriptive terms “mild,” “moderate,” “moderately severe”, and “severe” are not specifically defined in the Rating Schedule; rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. Under 38 C.F.R. § 4.124a, when the involvement is wholly sensory, the evaluation should be for the mild, or at the most, the moderate degree. Examples of physical manifestations include, but are not limited to, muscle weakness, muscle atrophy and diminished or absent reflexes. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). When the rating impairment is wholly sensory, a rating commensurate with mild incomplete paralysis is reasonably assigned when symptoms are recurrent but not continuous and are not noted, when occurring, to be more than moderate. Moreover, physical manifestations do not automatically require a rating in excess of moderate incomplete paralysis. Miller v. Shulkin, 28 Vet. App. 376, 37980 (2017). Rather, wholly sensory impairment may only be rated commensurate with mild or moderate impairment. When adjudicating claims not involving wholly sensory impairment (i.e., there is a mix of physical and sensory impairments, such as decreased reflexes and numbness), the Board finds that a rating of mild incomplete paralysis is warranted when there are less persistent sensory deficits that affect small areas, or for very minimal reflex or muscle strength impairment. A rating of moderate incomplete paralysis may be warranted when there are combinations of significant sensory changes and mild or slight muscle or reflex impairment, or muscle and/or reflex impairment that has been noted by the examiner to be moderate in nature An October 2013 DBQ shows the Veteran did not at the time have radiculopathy.   An August 2015 DBQ shows the Veteran did not have any numbness or any constant pain but had severe intermittent pain and moderate paresthesias and/or dysesthesias involving the sciatic nerve. The examiner found that the severity of the radiculopathy, overall, was mild for both the right and left lower extremity. A January 2019 DBQ reflects that the Veteran reported daily sharp shooting pain down the back of both calves with numbness on the lateral feet, aggravated by sitting for too long, and that these symptoms last 15 minutes to a couple of hours. He did not have paresthesia or weakness. He reported that he walks approximately twenty minutes a day for exercise. The examiner observed the Veteran does not have constant pain, paresthesias, or dysesthesias, but has moderate intermittent pain and mild numbness. The examiner explained that the overall level of radiculopathy was best described as mild in nature. A September 2020 DBQ shows that, for the right lower extremity, the Veteran had no constant pain, no intermittent pain, no paresthesias, no dysesthesias, and no numbness. For the left lower extremity, he had no constant pain, mild intermittent pain, severe paresthesias and/or dysesthesias, and no numbness. The examiner indicated the Veteran’s right leg was not affected by sciatic nerve involvement, but that the left leg was best described as moderate radiculopathy. That was the impetus for increasing the rating for the Veteran’s left lower extremity radiculopathy from 10 to 20 percent because that examiner had described it as “moderate” rather than “mild”. A January 2021 DBQ indicates that, for the right lower extremity, the Veteran had no constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and no numbness. For the left lower extremity, he had mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness. The examiner found the severity of radiculopathy to be mild for the right lower extremity and still moderate for the left lower extremity. These records do not reflect more severe symptoms or physical manifestations (e.g., muscle weakness, muscle atrophy and diminished or absent reflexes), such as to warrant higher ratings for either lower extremity. In addition, the Veteran has not reported more severe symptoms, such as loss of muscle strength, atrophy of the muscle, or that his foot dangles and/or drops. For these reasons and bases, the Board finds that a rating greater than 10 percent is not warranted for either lower extremity prior to July 6, 2015. Moreover, a higher rating is not warranted for the right lower extremity radiculopathy for any period, and a rating greater than 20 percent is not warranted since September 4, 2020. 4. Entitlement to a disability rating in excess of 20 percent for right shoulder bursitis with impingement This right shoulder disability is rated as 20-percent disabling under DC 5201. The Veteran has been noted to be left-handed (2013 DBQ) or ambidextrous (2012 VA examination report, 2019 DBQ, and 2020 DBQ). A pertinent VA regulation, 38 C.F.R. § 4.69, explains that, when determining handedness for an ambidextrous individual, the injured hand, or the most severely injured hand, will be considered the dominant hand for rating purposes. Full range of motion of the shoulder is from 0 to 180 degrees on abduction and forward elevation (flexion) and from 0 to 90 degrees on internal and external rotation. Shoulder level is 90 degrees. 38 C.F.R. § 4.71, Plate I. A 20 percent rating is warranted when the arm is limited in motion at the shoulder level (or 90 degrees). The Veteran would be entitled to a higher rating of 30 percent if he had limitation of motion to midway between his side and shoulder level (meaning limited to 45 degrees since to ½ of shoulder level) or an even higher 40 percent rating if he had limitation of motion to just 25 degrees from his side. The most probative evidence, however, does not suggest he has motion limited to these greater extents – even when considering his pain. An October 2013 DBQ reflects that the Veteran complained of progressive pain, stiffness, and weakness. Upon examination, he had flexion to 180 degrees with no objective evidence of painful motion. He also had 180 degrees of abduction with no objective evidence of pain. He was able to perform repetitive use testing with no decrease in range of motion. He also did not report any flare-ups. He had full muscle strength. He had a positive Hawkins impingement test with pain on internal rotation. He was granted a 20 percent rating by the Board due to his complaint of pain, the objective evidence of pain, and 38 C.F.R. § 4.59 indicating the intent of the Rating Schedule is to recognize painful motion as productive of disability. See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (indicating to apply 38 C.F.R. § 4.59 even in cases that do not involve arthritis). A January 2019 DBQ shows the Veteran reported flare ups in that it hurts to turn the steering wheel when he is driving, reaching, or other overhead activities. Upon examination, he had flexion from 0 to 100 degrees, abduction from 0 to 85 degrees, external rotation from 0 to 70 degrees, and internal rotation from 0 to 60 degrees. Pain was noted on examination and noted to cause functional loss. There was no evidence of pain with weight bearing, but there was evidence of mild tenderness to palpation over the anterior shoulder. He was able to perform repetitive use testing without additional functional loss or decreased range of motion. He had full muscle strength and no atrophy. The Hawkins test was again positive. He was noted to do upper body light weightlifting most days for fitness. A September 2020 DBQ reflects that that the Veteran reported that his right shoulder disability has stayed the same (i.e. not worsened in severity) since the onset in 2012. He reported pain and limited range of motion. He reported that, on a bad day, he will not move it. He also stated that some days are good, and his functional loss is worse on cold days. Upon examination, he had flexion from 0 to 95 degrees, abduction from 0 to 90 degrees, external rotation from 0 to 80 degrees, and internal rotation from 0 to 75 degrees. Pain or tenderness was noted on examination upon palpation. In addition, pain was noted in all movement and was noted to cause functional loss. He also had a positive Hawken’s Impingement test. There was also pain with weight-bearing. He reported having decreased ability to reach above his head and drive his car. There was no instability. That 2020 DBQ examiner found that there was not additional loss of function or range of motion after repetitive use testing. However, the examiner found that, with repeated use over time and/or during a flare-up, the Veteran’s flexion would be from 0 to 85 degrees, abduction from 0 to 80 degrees, external rotation from 0 to 70 degrees, and internal rotation from 0 to 65 degrees. He had full strength with no muscle atrophy. The examiner indicated the Veteran has decreased movement during a flare-up and that pushing and pulling are limited. He has limitations in his ability to reach above the shoulder, and he cannot use his arm for any motions with bending behind him.   The Veteran has not been shown to have an occupation that would result in frequent flare-ups; he has been noted to be a student (2013), have his insurance license (2015), be an actor (2017), be a project manager (2017) and be a janitor or project manager for janitorial services (2018). None of these (with the exception of perhaps the janitor job) has been shown to require extensive use of the shoulder and, importantly, he has stated that he does upper body work-outs most days, which reasonably can be found to involve the shoulder. Even assuming that he had frequent flare-ups lasting hours in duration, and assuming that during a flare-up or after repetitive use his flexion would be from 0 to 85 degrees and his abduction would be from 0 to 80 degrees, he still would not be entitled to a higher evaluation. A higher evaluation would be warranted if his motion was limited to midway between his side and shoulder level (meaning restricted to 45 degrees) or if he had even greater limitation. His disability more nearly approximates limitation at the 90-degree level (i.e., shoulder level) than at 45 degrees (to midway of that point). The Board also has considered that he has stated that, if he has a bad day (i.e., worse on a cold day), he does not move his arm. But the Board also sees that he lives in Southern California, which has not been shown to normally have cold weather. Even assuming for the sake of argument that he had a flare-up for 99.9 percent of the time, he still would not be entitled to a higher rating based on his range of motion since not sufficiently restricted, even worst case. Thus, a retrospective opinion or additional information as to frequency and duration of flare-ups is unnecessary. For these reasons and bases, a higher rating is not warranted. 5. Entitlement to an increased rating for the back (spine) disability The Veteran’s back disability was evaluated as 10-percent disabling prior to July 2015, as 20-percent disabling from July 2015 to September 2020, and as 40 percent disabling since September 2020. Under the General Rating Formula for Disease and Injuries of the Spine, the following symptoms and ratings are as provided: unfavorable ankylosis of the entire spine (100 percent); unfavorable ankylosis of the entire thoracolumbar spine (50 percent); forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (40 percent); or forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent). Prior to July 6, 2015 (rated as 10-percent disabling) A February 2012 DBQ reflects that the Veteran reported that he has some pain daily; it was noted that he is “very physically active” with mixed martial arts. He does not use braces or assistance devices, and his back was noted to not interfere with work or activities of daily living. Upon examination, he had flexion to 90 degrees, extension to 30 degrees, bilateral lateral bending to 30 degrees, and bilateral rotation to 30 degrees. Thus, he had full range of motion. There was no pain with motion, and repeated motion did not decrease the range of motion. An April 2013 clinical record reflects that the Veteran continues to do mixed martial arts and Jiu jitsu. A June 2013 medical record reflects that the Veteran reported constant pain, which improves when he bends forward and “cracks” his back. He reported that he “works out daily” and would be starting yoga for stretching. An October 2013 DBQ reflects that the Veteran reported progressive pain and stiffness since his last examination. Upon examination, he had flexion to 80 degrees with pain beginning at 80 degrees. He had extension to 25 degrees with pain beginning at 25 degrees. Bilateral rotation and lateral flexion were to 30 degrees with painful motion at the endpoint of 30 degrees. Repetitive use testing did not reduce the range of motion. The Veteran reported flare ups limited prolonged walking/standing, bending, twisting, and lifting/carrying. However, the examiner found that pain, weakness, fatigability or incoordination would not significantly limit functional ability during flare-ups. October 2014 lay statements from the Veteran’s girlfriend and father reflect their opinions that the Veteran’s back causes so much pain that he “cannot move his body at all. He has difficulty time lifting items. Even the lightest item will create discomfit for him”, that he cannot exercise, or do any physical activities. However, it was also reported that the pain is not constant but random and can last from a few hours to a few days, and that the pain occurs unexpectedly, such as when he tries to get up or turns the wrong way. A September 2020 examiner provided a retrospective opinion that during a flare up between February 2013 to July 6, 2015, the Veteran’s range of motion would be as follows: forward flexion to 60 degrees, extension to 12.5 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees (no change with flare-up), right lateral rotation to 30 degrees (no change with flare-up), and left lateral rotation to 30 degrees (no change in flare-up). Essentially, prior to July 2015, the Veteran had almost full range of motion upon examination in 2013, and there is no evidence to support that his flare-ups were so frequent and of such duration that they would cause his forward flexion to be limited to 60 degrees or less or combined range of motion not greater than 120 degrees for at least 50 percent of the day. As noted, he was able to do mixed marital arts and Jiu Jitsu and was able to lessen his pain by leaning forward and “cracking” his back. A subsequent record, noted below, reflects that he described his flare-ups as weekly and lasting 30 minutes to three hours; thus, again, most of his time was not in a flare-up. Moreover, his disability’s manifestations were not shown to result in abnormal spinal contour or abnormal gait. Thus, a higher rating is not warranted. July 2015 to September 2020 (rated as 20-percent disabling) The Veteran would be entitled to a higher 40 percent rating if he had forward flexion of his thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of his entire thoracolumbar spine. An August 2015 DBQ reports that sitting too long causes his back to throb. Upon examination, he had flexion to 40 degrees with pain starting at 30 degrees. He had backward extension to 0 degrees, so full extension. He reported weekly flare ups lasting 30 minutes to three hours and that caused him to sit and do nothing. Thus, even with pain, he was able to forward flex to 40 degrees, and most of the time he did not have a flare-up. A January 2017 VA new patient vesting examination indicates the Veteran reported back pain of 4-5 out of 10. He reported that working out is alleviating and that, if he is sedentary, the pain is worse. He also reported exercising at a gym 3 to 5 times a week. A January 2019 DBQ reflects that the Veteran reported having increased lower back pain and stiffness; he stated that it hurts after standing or sitting for 15 minutes and he finds himself changing position, moving around or stretching. He also reported daily sharp shooting pain aggravated by sitting for too long; these symptoms last 15 minutes to a couple of hours. He noted that he walks 20 minutes a day for exercise. Upon examination, he had forward flexion to 80 degrees, backward extension to 15 degrees, left and right lateral flexion (side bending) to 20 degrees, and left and right lateral rotation (twisting) to 25 degrees. Pain was noted during all ranges of motion. He had mild lumbar paraspinous muscle tenderness to palpation. He was able to perform repetitive use testing with no additional loss of function or range of motion. The 2019 examination also shows substantial improvement since the 2015 examination in terms of forward flexion. In 2015, he had forward flexion to 40 degrees, whereas four years later he had forward flexion to 80 degrees. Given the Veteran’s ranges of motion, and the reported duration and frequency of his flare-ups, his disability picture is best approximated by the 20 percent rating he had during this intervening period rather than any higher rating. Since September 4, 2020 (rated as 40-percent disabling) The Veteran would be entitled to a higher 50 percent rating if he had unfavorable ankylosis of his thoracolumbar spine or an even greater 100 percent rating if he had unfavorable ankylosis of his entire spine, meaning when additionally considering the cervical segment that is adjacent to his thoracolumbar (thoracic and lumbar) segment. The evidence does not show this required greater level of impairment.   A September 2020 DBQ contains the Veteran’s explanation that, during a flare-up, his pain is 8-9 out of 10, and he will not “really move around a lot”. On a good day, the pain is 6-7 out of 10. Upon examination, he had forward flexion to 40 degrees, extension to 12 degrees, left and right lateral flexion to 25 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. He reported a decreased ability to reach over from the sides and bend over to pick up items. Pain was noted on all ranges of motion. He had moderate localized tenderness or pain in the paraspinal region upon palpation. There was no additional loss of range of motion after repetitive use testing. The examiner found that, after repetitive use over time or a flare-up, the Veteran’s range of motion would be as follows: forward flexion to 30 degrees, extension to 7 degrees, left and right lateral flexion to 20 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 15 degrees. He did not have muscle atrophy. He reported having difficulty standing for longer than a couple of minutes on a bad day, when he can sit for about 15 minutes before he has to move. He also reported difficulty moving to the left, and he will avoid bending down or kneeling off the floor. He had objective evidence of pain in non-weight bearing. Passive range of motion testing could not be performed or was not medically appropriate. A January 2021 DBQ reflects that the Veteran reported that flare-ups of his back occur three to six times a week, are severe, last several hours, and are precipitated by activities that involve prolonged sitting, standing, walking, repetitive bending, and heavy lifting/carrying. Upon examination, he had forward flexion to 50 degrees, extension to 15 degrees, and left and right lateral flexion and rotation to 20 degrees. There was no additional loss of function or range of motion after three repetitions. The examiner opined that, after repetitive use over time, the Veteran’s flexion would be to 40 degrees, his extension to 10 degrees, and his other movements to 15 degrees. The examiner also found that, during a flare-up, the Veteran’s flexion would be to 30 degrees, his extension to 5 degrees, and his other motions to 10 degrees. Thus, while there is no disputing he has less motion than normal (i.e., limitation of motion or restriction of motion), it cannot be said that his thoracolumbar spine or entire spine is ankylosed, certainly not in an unfavorable position or even at all, since that would mean no motion.   Indeed, even if he had “favorable” ankylosis, meaning fixation of his spine in a neutral position (0 degrees), which it is not shown that he has, this is contemplated by his existing 40 percent rating according to the General Rating Formula for Diseases and Injuries of the Spine. Note (5) in this General Rating Formula explains that, contrastingly, unfavorable ankylosis is a condition in which the entire cervical spine, the 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 costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. The evidence of record does not indicate the Veteran's thoracolumbar spine, or entire spine, is fixed in flexion or extension. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The Veteran is competent to describe his pain, and the lay statement providers are competent to report when and what they have observed; however, when considering the record as a whole, to include the clinical records, the examinations, the medical opinions, and the lay statements, the Board find that higher ratings are not warranted for any of the periods being considered. The Board acknowledges that the Veran’s back pain at times precludes him from doing physical activities, however, his flare-ups of pain have not been so frequent or in such a long duration as to warrant higher ratings, including by having such a consequent effect on his range of motion that the Board could conclude he has ankylosis or restriction in mobility tantamount or akin to it.   Moreover, the exact onset of the increase in his symptoms cannot be determined with any certainty. The earliest that it can be determined that he met the criteria for his current ratings (progressive increases) is the date of each examination showing the required greater level of impairment. See Harper v. Brown, 10 Vet. App. 125 (1997). Finally, the Board notes that the evidence (to include the 2013, 2015, 2019, 2020, and 2021 DBQs) is against finding that the Veteran has had incapacitating episodes as defined expressly by VA regulation – 38 C.F.R. § 4.71a, DC 5243, Note (1) (meaning acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician). If, as an example, he experiences an acute flare up of symptoms (e.g., pain, etc.) and resultantly takes to bed to try and recuperate, this is not an incapacitating episode because it is at his own election rather than on prescription of a doctor as means or modality of treatment). Thus, higher ratings are not warranted alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes. For these reasons and bases, increased ratings are not warranted. 6. Entitlement to a TDIU The Veteran has the following service-connected disabilities: spine disability, bilateral (so left and right) upper extremity thoracic outlet syndrome, primary insomnia, right shoulder bursitis, bilateral (so left and right) lower extremity radiculopathy, tinnitus, bilateral (so left and right) knee disability, and tinea corporis, for a combined evaluation of 70 percent from March 2012 to February 2013, 80 percent from February 2013 to May 2018, 100 percent from May 2018 to August 2018, 80 percent from August 2018 to September 2020, and 90 percent since September 2020. The Veteran has sufficient ratings for these several service-connected disabilities, including sufficient combined rating for them, to be considered for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). On his 2015 application for a TDIU (VA Form 21-8940), the Veteran asserted that he had not worked since separating from the Marine Corps in March 2012, but that he was getting his college degree. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. So, above and beyond that, there must be indication of inability to work in any substantially gainful capacity for a claim of entitlement to a TDIU to prevail. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disability, alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Court has held 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 (2019) The Court also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities.   Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment also may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. §§ 4.16(a), 4.18. A December 2015 Vocational Assessment submitted by the Veteran contains the opinion of the examiner (P. Clifford), in pertinent part, as follows: [The Veteran’s] very unique, specific, and physically-oriented vocational history and absence of training or experience in sedentary lines of work cause his service-connected disabilities alone to preclude gainful occupation. It is important to emphasize that this is a unique case involving a veteran whose vocation is specific and in a field involving physical "combat" in a martial arts context, as well as physical training. Adequate performance in these occupations requires top-notch physical performance. The vocational examiner noted that the Veteran’s chronic insomnia resulted in extreme daytime fatigue, which limits a worker’s ability to focus on task, complete tasks, and concentrate, and also found that, based on the veteran’s physical limitations and residual functional capacity he would be unable to perform any of his past occupations due to their physical requirements. Moreover, he is not qualified by virtue of education or training to perform any other type of work.   However, despite that assessment of that vocational examiner, the record shows the Veteran was able to graduate from college (so was successful in that endeavor, which is evidence that he could focus, concentrate, and complete tasks) and resultantly be employed. A January 2017 VA new patient vesting examination indicates he has a Bachelor’s degree in business administration (which he obtained in 2015), that he exercises at a gym 3 to 5 times a week, and that he was employed as a project manager for a facility at a large university. Thus, the Board finds that the vocational examiner’s opinion lacks significant probative value. The report of a more recent January 2019 VA examination concerning the Veteran’s back disability indicates he recounted last working in October 2018, so until just 3 months before that examination, and the report does not provide any information as to why he was no longer employed in the job he had up to that point in time. An even more recent September 2020 DBQ discusses the Veteran’s difficulty, including limitations in both sitting and standing, and how this greatly impacts his ability to perform certain jobs unless he is allowed to modify his positions and go from sitting to standing to accommodate his pain. A September 2020 DBQ for his right shoulder disability reflects that he has “decreased movement during a flare-up with limitations to pushing, pulling, reaching above his right shoulder, and doing any movements behind him with his shoulder joint. However, there are many sedentary jobs that do not require these activities and [he] is employable.” A September 2020 DBQ for his knee disability reflects that his “ability to walk, stand, kneel, go upstairs, and sit limits his ability to work as a result of his bilateral knee condition. While there may be difficulty in performing physical labor, it is possible with time restrictions that [he] can perform sedentary.” A January 2021 examination report explains that his back disability would impact his ability to work but he may still stand/walk four hours in an 8-hour shift with adequate breaks and may lift and carry up to 30 pounds occasionally and up to 15 pounds frequently.   In the 2019 remand, the Board consequently directed the Veteran be provided another VA Form 21-8940 (TDIU application) in an effort to obtain needed information concerning his current employment status and ability. To this end, in October 2020, VA mailed him the form and requested that he complete and return it, as well as a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) for each employer identified on the VA Form 21-8940. Unfortunately, to date, he has failed to provide VA with these completed forms, despite VA’s request for them. The duty to assist him in fully developing this claim is not a one-way street. If he wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As it stands, the Veteran has not provided needed information concerning the dates or years of his employment and his salaries, the latter to determine whether they exceeded the poverty threshold. Essentially, then, as an unfortunate consequence, there is insufficient evidence of record upon which to find that his service-connected disabilities preclude substantially gainful employment. Based on his reports of working out at a gym (up to six days a week at times), his past teaching experience in Ji Jitsu, his degree in business, and his employment with a large university as a project manager, the Board finds that he can reasonably be expected to find some type of gainful employment, such as at a gym or fitness center, which would allow him to walk and/or sit when needed throughout an eight-hour day; there is no evidence this would not be substantially gainful employment.   For these reasons and bases, a TDIU is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.