Citation Nr: 21007721 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-16 862 DATE: February 10, 2021 ORDER Entitlement to an increased evaluation for degenerative disc disease of the cervical spine higher than 40 percent is denied. Entitlement to an increased evaluation for degenerative disc disease of the lumbar spine higher than 20 percent prior to January 30, 2020 and higher than 40 percent thereafter is denied. Entitlement to a separate rating for left lower extremity radiculopathy prior to August 3, 2018, and higher than 10 percent thereafter is denied. Entitlement to a separate rating for right lower extremity radiculopathy prior to August 3, 2018, and higher than 10 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s cervical spine disability has not been manifested by unfavorable ankylosis of the entire spine at any point during the appeal period. 2. Prior to January 30, 2020, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, and with no evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 3. From January 30, 2020, the Veteran’s lumbar spine disability is not productive of unfavorable ankylosis of the entire thoracolumbar spine, and there is no evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. 4. From August 3, 2018, the Veteran’s left lower extremity radiculopathy was manifested by no more than mild impairment of the left sciatic nerve. 5. From August 3, 2018, the Veteran’s right lower extremity radiculopathy was manifested by no more than mild impairment of the right sciatic nerve. 6. The probative evidence shows that the Veteran’s service-connected disabilities preclude him from following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 40 percent for cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5237. 2. The criteria for entitlement to an evaluation higher than 20 percent, prior to January 30, 2020, and higher than 40 percent thereafter, for lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5242. 3. The criteria for a separate rating for left lower extremity radiculopathy prior to August 3, 2018, and higher than 10 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, DC 8520. 4. The criteria for a separate rating for right lower extremity radiculopathy prior to August 3, 2018, and higher than 10 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, DC 8520. 5. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1971 to May 1980, and from November 1990 to December 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019 a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Increased Rating Factual Background In February 2016, he submitted a completed 21-8940, indicating he was unable to maintain employment as a result of his cervical spine and lumbar spine disabilities. He reported worked for Express Jet Airlines from March 1999 to February 2007, and for Atlantic Southeast Airlines from September to October 2010. In March 2016, he underwent a lumbar spine examination and was diagnosed with degenerative joint disease and disc disease of the lumbar spine. He had steroid injections into his lumbar spine the week prior. He reported flare-ups of pain that were described as sharp and aching pain. He reported functional loss results in decreased range of motion. Range of motion testing revealed flexion to 90 degrees, extension to 25 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 25 degrees. There was pain noted on examination that does not result in or cause functional loss. He had pain with extension, and with right and left lateral flexion and rotation. There was no evidence of localized tenderness or pain on palpation of the joints. There was no evidence of pain with weight bearing. Following three repetitions there was not any additional loss of function or range of motion. The examination was deemed neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and during a flare-up. Pain, weakness, fatigability, or incoordination do not limit functional ability with repeated use over a period of time, and during a flare-up. There was no localized tenderness guarding or muscle spasms of the spine. There was no evidence of radiculopathy and straight leg raising test results were negative. He did not have ankylosis or IVDS of the spine. There were no other neurologic abnormalities, such as bowel or bladder problems. There was no noted impact on his ability to work. In March 2016, he underwent a cervical spine examination, and was diagnosed with degenerative disc disease of the cervical spine, and status post cervical spine surgery. He reported flare-ups of pain that resulted in pain and stiffness. Functional impairment of his spine was described as loss of range of motion. Range of motion in the cervical spine revealed flexion 0 to 30 degrees, and extension 0 to 30 degrees, right and let lateral flexion to 25 degrees, and right and left lateral rotation to 70 degrees. Pain was noted on examination that resulted in limitation of range of motion. There was no evidence of pain with weight bearing, or of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. There was no additional loss of function or range of motion after three repetitions. The examination was deemed neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and during a flare-up. Pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over a period of time or during a flare-up. There was no localized tenderness guarding or muscle spasms of the cervical spine. He did not have any radicular pain or symptoms of radiculopathy. There was no evidence of ankylosis or IVDS. He has a scar at the right front of the neck, measuring 10 cm x 0.1cm. There was no noted impact on his ability to work. In June 2016, a completed 21-4192 was received from Express Jet Airlines, Inc., indicating the Veteran last worked in November 2010. The reason given for as to why the Veteran was no longer employed was that he retired. In an August 2016 statement, the Veteran reported being unable to stand or sit for long periods of time, which greatly reduced his ability to maintain gainful employment. He also reported having limited range of motion in his neck, which affects his ability to seek employment. He had been granted SSA benefits as a result of his back and neck disabilities. In a September 2016 statement from Dr. P. M., Dr. M. reported the Veteran as being a patient in his office. He reported the Veteran being diagnosed with spinal degenerative disc disease, and spinal facet disease and arthritis, central canal stenosis, non-insulin dependent diabetes, and peripheral neuropathy. Dr. M. concluded the Veteran is unable to obtain and sustain gainful employment due to his physical disabilities as a result of his medical conditions. SSA records indicate the Veteran was found disabled with a disability start date being September 2008, on account of discogenic and degenerative disorders of the back and diabetes mellitus. In a March 2017 statement, he reported retiring from his work as a pilot as a result of his service-connected conditions. Treatment records from Woodlands Pain Institute, show symptoms of bilateral lower extremity radiculopathy. In August 2018, he was found to have positive straight leg raising on the left and negative on the right, with radiating pain to both lower extremities, and intermittent tingling and numbness. In March 2019, he had positive straight leg raising on the right and left, with radiating pain to both ankles and intermittent numbness and tingling. Later in June 2019, he had radiating pain to both ankles. In July 2019, he was noted as having radiculopathy of the lumbosacral region, with radiating pain to both ankles and intermittent numbness and tingling. In January 2020, he underwent a lumbar spine examination. He reported being unable to stand two minutes to make coffee. He must use an electric motorized chair when shopping. He recently had injections in his spine. He denied flare-ups. Range of motion testing revealed right lateral flexion to 20 degrees, left lateral flexion to 2 degrees, and right and left lateral rotation to 30 degrees. On flexion testing, the Veteran stopped the examination stating he was in pain; therefore, there were no determinative findings. There was no pain with weight bearing, or of localized tenderness or pain on palpation of the joints of the spine. There was no additional loss of function or range of motion after three repetitions. He was examined immediately after repetitive use over time, and pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no indication of flare-ups. He did not have guarding or muscle spasms. There were no neurologic abnormalities to include radiculopathy. He did not have ankylosis or IVDS. He was using a walker on a constant basis. There was no weakened movement, incoordination, or pain on palpation. In January 2020, he underwent a neck examination. He reported being unable to turn his head all the way, and having days where his pain reaches 10. Pain was described as aching, with a precipitating factor being use, and alleviating factor being sitting still. He reported pain with repeated use over time. The last time he had received treatment for his neck was in 2012. He was noted as being unable to work as a pilot secondary to the mandatory age of retirement. Range of motion testing revealed flexion to 35 degrees, extension to 0, right lateral flexion to 15 degrees, left lateral flexion to 0 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 25 degrees. There was pain noted on examination that did not result in functional loss. There was no evidence of pain with weight bearing, or of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. There was no additional loss of function or range of motion after three repetitions. He was examined immediately after repetitive use over time, and pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no indication of flare-ups. He did not have guarding or muscle spasms. There were no neurologic abnormalities, to include radiculopathy. He did not have ankylosis or IVDS. He did not use an assistive device. There was no weakened movement, excess fatigability, diminished endurance, incoordination, pain throughout motion, or pain on palpation. He did report pain, and there was limited motion. In a July 2020 decision, the RO granted a separate evaluation for right lower extremity radiculopathy and left lower extremity radiculopathy, each with 10 percent evaluations. The RO then assigned an increase evaluation for lumbar spine degenerative disc disease with a 40 percent evaluation from January 30, 2020. Legal Criteria Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where the combined range of motion of the cervical spine is not greater than 170 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. CAVC has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to “perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.” Id. (quoting 38 C.F.R. § 4.40). Additionally, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 1. Entitlement to an increased evaluation for degenerative disc disease of the cervical spine higher than 40 percent The Veteran’s cervical spine is evaluated as 40 percent disabling under DC 5237. The preponderance of the above evidence demonstrates that the Veteran is not entitled to an evaluation higher than 40 percent at any time during the pendency of this claim. The Veteran is competent to report on symptoms, and the Board has considered his complaints in reaching this decision. The Veteran is not competent; however, to determine whether this cervical spine disability meets the criteria for a higher rating. Even considering the Veteran’s subjective complaints of pain, the evidence of record does not show any additional limitation of motion or functional impairment that would support an evaluation higher than 40 percent. Upon review of the totality of the record, the Board finds that a rating higher than 40 percent is not warranted for the Veteran’s cervical spine disability at any point during the appeal period as the Veteran does not assert that he has ankylosis of the entire spine, and the evidence does not reflect otherwise. At the 2016 examination flexion and extension were noted as limited to 30 degrees, and there was no evidence of ankylosis or IVDS. At the 2020 examination, although he reported being unable to turn his head all the way and days where pain reaches 10, he had flexion to 35 degrees, and extension 0. There was no evidence of pain with weight bearing, or tenderness of the spine, or of further loss of function after repetitions. He denied flare-ups, and again, there was no evidence of IVDS or ankylosis. Additionally, IVDS has not been identified, nor is there any indication of prescribed bed rest to allow for a rating under the criteria for IVDS. The Board also notes that the evidence does not indicate the presence of any radiculopathy or other associated neurological complications related to the cervical spine, and the Veteran does not assert otherwise. Therefore, as there is no evidence of ankylosis or IVDS, a rating higher than 40 percent is precluded. As 40 percent is the highest schedular rating for limitation of motion for the cervical spine, consideration of the provisions of DeLuca are not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Similarly, as the Veteran is in receipt of the maximum rating for limitation of motion, the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016) is not applicable, and any examination inadequacies regarding range of motion testing of the cervical spine as described in 38 C.F.R. § 4.59 would be inconsequential and would result in harmless error. Additionally, any deficiencies in the examiners’ inability or failure to provide an estimate of additional loss of range of motion during flare-ups is moot. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate with regard to flare-ups where the examination was the basis for a denial of a higher disability rating and the Veteran was not receiving the maximum schedular rating based on limitation of motion). As already discussed, the Veteran does not assert, and the evidence does not show, unfavorable ankylosis of the entire spine. Therefore, the Board finds that Correia and Sharp are inapplicable in this case. 2. Entitlement to an increased evaluation for degenerative disc disease of the lumbar spine higher than 20 percent prior to January 30, 2020 and higher than 40 percent thereafter. The Veteran is in receipt of a 20 percent rating prior to January 30, 2020, and a 40 percent rating thereafter, under diagnostic code 5242. The preponderance of the above evidence demonstrates that the Veteran is not entitled to an evaluation higher than 20 percent prior to January 30, 2020. To meet the criteria for a 40 percent rating, the range of flexion would have to be limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine under diagnostic code 5242, or under Diagnostic Code 5243 there would have to be IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The Veteran is competent to report on symptoms, and the Board has considered his complaints in reaching this decision. The Veteran is not competent; however, to determine whether this lumbar spine disability meets the criteria for a higher rating. Prior to January 30, 2020, the record shows that the Veteran’s flexion on exam was found to be, at worst, to 90 degrees and to 25 degrees, with no evidence of further limitation following repetitive motion or during a flareup. The functional impact was described as decreased range of motion. Although there were complaints of pain, there was no specific weakness, fatigability, or incoordination noted. Furthermore, there was no evidence of muscle spasms or guarding severe enough to result in abnormal spinal contour or abnormal gait. Therefore, even considering loss due to pain after repetitive use, the Veteran is not entitled to an evaluation higher than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. As for functional loss during a flare-up, the Veteran described sharp and aching pain during a flare-up that results in loss of motion. This report of functional loss during a flare-up does not more nearly approximate limitation of flexion to 30 degrees or less. Higher evaluations are also available for intervertebral disc syndrome. The Veteran has not been diagnosed with IVDS, and there is no probative evidence of record of the Veteran seeking treatment for incapacitating episodes, or that he has been prescribed bed rest by a physician. Therefore, based on the probative evidence of record, the Veteran is not entitled to an evaluation higher than 20 percent for his lumbar spine disability prior to January 30, 2020. The Board finds that from January 30, 2020, the criteria for a rating higher than 40 percent have not been met. During his January 2020 examination, the Veteran reported painful motion and being unable to perform flexion testing because of his level of pain. He reported being unable to stand more than two minutes, and needing a motorized chair at times. He denied flare-ups, and there was no guarding or muscle spasms or IVDS. Although he was unable to perform flexion, he was able to conduct right and left lateral flexion and rotation. His range of motion was reduced, but there was no indication of ankylosis. These findings are consistent with a 40 percent rating. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the motion found by the VA examiners, and VA medical providers, the Board finds that that the Veteran does not have ankylosis of the cervical or thoracolumbar spine. As such, an evaluation in excess of 40 percent is not warranted. Again, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca, supra. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. To be entitled to the next higher evaluation of 50 percent, there must be ankylosis of the entire thoracolumbar spine, of which there is no evidence. The next higher evaluation is not warranted. Higher evaluations are also available for IVDS; however, the Veteran has not been diagnosed with IVDS, or been prescribed bed rest by a clinician. Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Separate ratings have already been assigned for bilateral lower extremity radiculopathy, which is discussed below. There is no evidence of incontinence of bowel or bladder due to his lumbar spine disability. As such, the record does not show any other neurological abnormalities associated with the Veteran’s lumbar spine. Accordingly, a separate rating for a neurological disability is not warranted. The Board finds the Veteran is competent to report on symptoms. This competent and credible lay evidence; however, is outweighed by competent and credible medical evidence that evaluates the actual nature of his disability based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. Accordingly, entitlement to an evaluation higher than 20 percent prior to January 30, 2020, and higher than 40 percent, thereafter, for the lumbar spine disability is not warranted. 3. Entitlement to a separate rating for left lower extremity radiculopathy prior to August 3, 2018, and higher than 10 percent thereafter are not met. 4. The criteria for a separate rating for right lower extremity radiculopathy prior to August 3, 2018, and higher than 10 percent thereafter are not met. The August 2018 private treatment record identifies mild bilateral lower extremity radiculopathy. Based on this finding, the Veteran has been assigned separate 10 percent ratings for right and left lower extremity radiculopathy associated with lumbar spine disability from the date of this finding, August 3, 2018. See July 2020 rating decision. The January 2020 examination report demonstrates the Veteran did not have radiculopathy. Therefore, based on the findings of the 2018 treatment record which identified mild symptomatology, no higher than 10 percent evaluation is warranted. See 38 C.F.R. § 4.124a, DC 8520. Entitlement to separate ratings prior to August 3, 2018 is denied, as the Veteran denied any pain, numbness, paresthesia, or other radicular symptoms during the 2016 examinations, and there is no other competent evidence supporting separate ratings during the earlier portion of the appeal period. No other separately compensable neurological ratings are warranted based on the record. 4. Entitlement to individual unemployability The Veteran asserts he is unable to work as a result of his service-connected disabilities. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, 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 either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a). In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, neither the Veteran’s nonservice-connected disabilities nor advancing age may be considered. The Veteran is service connected for degenerative joint disease of the cervical spine with a 40 percent evaluation from February 2016, degenerative joint disease of the lumbar spine with a 20 percent from February 2016 and a 40 percent from January 2020, sleep apnea with a 30 percent from January 1002, bilateral hearing loss with a 10 percent evaluation from May 2017, and tinnitus with a 10 percent from May 2016, right lower extremity radiculopathy with a 10 percent evaluation and left lower extremity radiculopathy with a 10 percent evaluation from August 2018, and noncompensable evaluations for his left great toe fracture and scar associated with degenerative joint disease. The Veteran has a combined rating of 80 percent from August 2018. The Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU based on his service-connected disabilities. In February 2016 he submitted a completed 21-8940, indicating he was unable to maintain employment as a result of his cervical spine and lumbar spine disabilities. He reported worked for Express Jet Airlines from March 1999 to February 2007, and for Atlantic Southeast Airlines from September to October 2010. In June 2016, a completed 21-4192 was received from Express Jet Airlines, Inc., indicating the Veteran last worked in November 2010. The reason given for as to why the Veteran was no longer employed was that he retired. At the 2016 VA examinations, the examiner concluded there would be no impact on his ability to maintain employment due to his cervical and lumbar spine disabilities. In a 2017 statement, the Veteran reported being unable to obtain employment as a result of his service connected conditions, which cause him pain and impact his ability to stand or sit. In a 2017 statement, the Veteran’s private physician Dr. M. opined that the Veteran was unable to obtain and sustain gainful employment due to his physical disabilities. This physician cited the Veteran’s lumbar and cervical spine disabilities, diabetes, and neuropathy. SSA records indicate the Veteran was found disabled with a disability start date if September 2008, due to discogenic and degenerative disorders of the back and diabetes mellitus. Of note, the Veteran is not currently in receipt of service connection benefits for diabetes mellitus. The Board acknowledges the statement of his employer that he no longer works as a result of his retirement as well as the VA examiner’s finding of no occupational impact. However, the ultimate unemployability determination is a legal one. See Geib v. Shinseki, 733 F.3d at 1354. The Veteran has reported his service-connected conditions have an impact on his ability to secure employment. There is a statement from his private physician attesting to the Veteran’s inability to work, and the SSA record findings of disability based, in part, on his disabilities of the spine. Based on his work history, the realistic chance of his obtaining and maintaining substantial gainful employment is low. The Board concludes the criteria for an award of TDIU benefits are met. The Board will not assign an effective date for the award of TDIU and will allow the RO to do so in the first instance. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curium order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.