Citation Nr: 21008224 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 15-15 932 DATE: February 12, 2021 ORDER Entitlement to a 40 percent evaluation, but no higher, for a service-connected disability of the lumbar and thoracic spine is granted, effective November 25, 2016. Entitlement to an evaluation higher than 20 percent for a service-connected disability of the lumbar and thoracic spine prior to November 25, 2016 is denied. Entitlement to a 40 percent evaluation, but no higher, for left lower extremity polyneuropathy is granted, effective November 25, 2016. Entitlement to a 40 percent evaluation, but no higher, for right lower extremity polyneuropathy is granted, effective November 25, 2016. Entitlement to an evaluation higher than 20 percent for left lower extremity polyneuropathy for the period prior to November 25, 2016 is denied. Entitlement to an evaluation higher than 20 percent for right lower extremity polyneuropathy for the period prior to November 25, 2016 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders is granted, effective April 9, 2012. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the symptoms of the Veteran’s service-connected lumbar and thoracic spine disability have ever caused unfavorable ankylosis of the entire thoracolumbar spine. 2. The evidence is at least evenly balanced as to whether, between November 25, 2016 and March 7, 2018, after taking into account pain and functional loss during flare-ups and after repeated use over time, the symptoms of the Veteran’s service-connected thoracic and lumbar spine disability most closely approximated forward flexion of 30 degrees or less. 3. For the period before November 25, 2016, the preponderance of the evidence is against a finding that the symptoms of the Veteran’s service-connected thoracic and lumbar spine limited forward flexion to 30 degrees or less. 4. For the period since November 25, 2016, taking into account pain and functional loss during flare-ups and after repeated use over time, symptoms of the Veteran’s left lower extremity polyneuropathy most closely approximated moderately severe incomplete paralysis. 5. For the period since November 25, 2016, taking into account pain and functional loss during flare-ups and after repeated use over time, symptoms of the Veteran’s right lower extremity polyneuropathy most closely approximated moderately severe incomplete paralysis. 6. For the period before November 25, 2016, symptoms of the Veteran’s left lower extremity polyneuropathy most closely approximated moderate incomplete paralysis. 7. For the period before November 25, 2016, symptoms of the Veteran’s right lower extremity polyneuropathy most closely approximated moderate incomplete paralysis. 8. The evidence is at least evenly balanced as to whether, since April 9, 2012, the Veteran’s service-connected disabilities of the spine and lower extremities have prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 40 percent for a service-connected lumbar and thoracic spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5239. 2. The criteria for an increased 40 percent rating, but no higher, for a service-connected lumbar spine disability have been met between November 25, 2016 and March 7, 2018. 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5239. 3. In the period before November 25, 2016, the criteria for an evaluation higher than 20 percent for a service-connected lumbar and thoracic spine disability have not been met. 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5239. 4. Since November 25, 2016, the criteria for an increased 40 percent evaluation for service-connected polyneuropathy of the right sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520. 5. Since November 25, 2016, the criteria for an increased 40 percent evaluation for service-connected polyneuropathy of the left sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520. 6. Since April 9, 2012, the criteria for a total disability rating based on individual unemployability due to service-connected disorders (TDIU) have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b), 3.340, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1958 to February 1966. This matter comes to the Board from a September 2013 decision of the Agency of Original Jurisdiction (AOJ). In February 2016, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. In January 2018, the Board issued a decision and remand, denying evaluations higher than 20 percent for all three disabilities in this appeal while remanding the issue of TDIU for further development. The Veteran appealed the denial of his increased rating claims to the United States Court of Appeals for Veterans Claims (Court). After further proceedings, counsel for both parties filed a Joint Motion for Partial Remand (JMR), in which they agreed that, in its January 2018 decision, the Board erred by providing an inadequate statement of its reasons for its rulings on the increased rating claims. By granting the JMR, the Court vacated the January 2018 denial of the increased rating claims and remanded them back to the Board. All four issues returned to the Board in April 2019. The Board increased the rating assigned to the spine disability from 20 percent to 40 percent, effective March 7, 2018, increased the ratings for both right and left lower extremity polyneuropathy to 40 percent, effective June 22, 2017, and granted a TDIU rating, also effective June 22, 2017. In April 2019, the Board explained, the record included evidence which had not been considered by the AOJ and, with respect to which, the Veteran had not waived his right to have the AOJ consider that evidence before review by the Board. Thus, the April 2019 decision was limited to favorable rulings which could be supported by the available evidence. The Board remanded the requests for spine ratings higher than 20 percent prior to March 7, 2018 and higher than 40 percent after that. For the same reason, the Board remanded claims for ratings higher than 20 percent prior to June 22, 2017 and higher than 40 percent afterwards, for both right and left lower extremity neuropathy. As a result of the favorable rulings granted by the Board in April 2019, the Veteran’s disability ratings satisfied the criteria for a TDIU rating under 38 C.F.R. § 4.16(a) for the period after June 22, 2017. Relying on the Veteran’s statements, the medical evidence, and the report of a vocational consultant submitted by the Veteran’s attorney, the Board granted TDIU for the period since June 22, 2017. The claim for a TDIU before June 22, 2017 was remanded to the AOJ for referral to the Director of the Compensation Service for initial consideration of the issue on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Increased Rating Claims Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board may consider whether separate ratings may be assigned for separate periods of time – a practice known as “staged ratings,” – whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability ratings for lumbar and thoracic spondylosis have been assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5239 (“Spondylolisthesis or segmental instability”). The General Formula for Diseases and Injuries of the Spine (General Formula) applies to this diagnostic code, unless it is appropriate to evaluate the disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board will apply whichever method results in the higher rating. See 38 C.F.R. § 4.71(a). Under the General Rating Formula, a thoracolumbar spine disability is rated as follows: a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome, incapacitating episodes having a total duration of least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a 40 percent rating. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a 60 percent rating. Under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), when evaluating the severity of certain disabilities, including disabilities of the spine, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 33. Diagnostic Codes 8520, 8620, and 8720, used to rate the lower extremities, provide the rating criteria for paralysis of the sciatic nerve, and neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, with no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, and 8720. The provisions of Diagnostic Code 8620 refer to neuritis of the sciatic nerve. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. DC 8520 is part of the group of regulations for rating neurologic disabilities. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. Factual Background The Veteran’s initial claim for compensation for his spine disability was granted in September 2006, with an initial 10 percent rating. The Board increased this rating to 20 percent in August 2008. On April 9, 2012, the Veteran initiated the pending case by notifying the AOJ of his desire to seek increased ratings for his service-connected disabilities. To help decide these claims, the AOJ arranged for a physician to examine the Veteran in September 2012. According to the examiner’s report, the diagnoses were degeneration of the intervertebral discs and sciatica. The Veteran told the examiner he experienced flare-ups approximately once a month, causing extremely painful low back pain. These episodes affected his ability to stand and were exacerbated by overuse. Initial range of motion testing showed forward flexion between zero to 55 degrees (90 degrees is normal), with painful motion beginning at 55 degrees. Extension was from zero to 10 degrees (30 degrees is normal), with painful motion beginning at 10 degrees. Both right and left lateral flexion were normal, with no objective evidence of painful motion. Both right and left lateral rotation were from zero to 10 degrees (30 degrees is normal), with painful motion beginning at 10 degrees. The Veteran was able to perform repetitive use testing with forward flexion to 70 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right lateral rotation to 10 degrees and left lateral rotation to 10 degrees. In other words, there were no additional range of motion limits after repetitive use. All muscle strength tests were normal, except for right knee extension, in which the examiner indicated active movement against some resistance (4/5). All reflexes were normal. Sensory exams were normal with the exception of bilateral lower leg/ ankle, which showed decreased sensation to light touch. When asked to describe the functional impact of his disability, the Veteran told the examiner that he could not lift or bend without pain. The report indicates that the Veteran constantly used a cane. There were further back and peripheral nerves examinations in June 2014. The results of initial range of motion tests were 45 degrees forward flexion, with painful motion beginning at 45 degrees. Extension ended at 20 degrees with no evidence of painful motion. Left and right lateral flexion were 20 degrees, with painful motion beginning at 20 on both sides. Lateral rotation was normal (30 degrees) on both sides, with no objective evidence of painful motion. There was no additional limited motion after three repetitions. Functional loss consisted of less movement than normal, pain on movement, instability of station, and interference with sitting/standing and/or weight bearing. The report’s back questionnaire described muscle strength as normal with left hip flexion but somewhat reduced (4/5) with all other lower extremity movements. The peripheral nerves questionnaire, however, described muscle strength as somewhat reduced (4/5) with knee extension, ankle plantar flexion and ankle dorsiflexion on the right side. During all lower extremity movement on the left side, muscle strength was normal (5/5). Both questionnaires denied the presence of muscle atrophy. There is another discrepancy between the questionnaires with respect to the nerve group affected by polyneuropathy. The peripheral nerves questionnaire described the femoral nerve group as normal, while the back questionnaire indicated radiculopathy affecting the femoral nerve roots on both sides. The examiner described the severity of the radiculopathy as moderate. In his April 2015 VA Form 9 the Veteran described his back pain as constant, causing nausea and stomach aches. He also wrote that his neuropathy symptoms had worsened. According to a July 2015 treatment note, the Veteran did not require any assistance bathing, dressing, toileting, feeding or transferring in and out of beds and chairs. During the February 2016 hearing, the Veteran testified that he was able to walk approximately a quarter mile. He said that pain affected his ability to sleep and pain increased with sitting. But he denied prescribed periods of bed rest. When asked about his peripheral nerve condition, he said that he was unable to feel anything below his mid-calf on both legs. The Veteran stated that numbness meant he was unable to drive, required him to install handrails in his shower, and caused him to fall three times in the prior year. A June 2017 neurology record indicates that motor conduction velocity of all nerves were delayed, distal motor latency of all nerves were normal, conduction velocity of the h-reflex of the right and left posterior tibial nerves were normal, the amplitude of the compound muscle action potential of all nerves were decreased, and sensory conduction velocity of all nerves were delayed. The study was consistent with a motor and sensory polyneuropathy involving all nerves under study, mixed type (axonal and demyelinating) moderate to severe. There was no sign of entrapment neuropathy. The Veteran had another back examination in July 2017. According to the examiner’s report, during initial testing, the spine was capable of 45 degrees of forward flexion. Extension was zero to 20 degrees. Both right and left lateral were from zero to 20 degrees. Both right and left lateral rotation were normal (zero to 30 degrees). According to the examiner, the Veteran exhibited pain during forward flexion, extension, and with right and left lateral flexion. There was pain with weight bearing but no additional loss of motion after three repetitions. The examiner noted that there was no objective evidence of pain on non-weight bearing. Testing during passive motion indicated the same range of motion results as active range of motion. There was no objective evidence of pain during passive range of motion testing. Functional loss consisted of pain and weakness. The examiner estimated range of motion after repeated use over time would be the same as the initial results. According to the examiner, functional loss during flare-ups consisted of pain and weakness. The examiner’s estimate of range of motion during flare-ups was also the same as the initial test results. Describing additional factors contributing to disability, the examiner wrote, “Weakened movements are due to fatigue and pain, it slows the veteran down because he needs to take frequent rest periods.” Muscle strength was significantly restricted in the great toe of both feet (3/5 or “Active movement against gravity”) but otherwise normal. Reflexes were normal and, except for the feet and toes, sensation to light touch was also normal. The Veteran was unable to perform straight leg raising tests. According to the examiner, performing the tests “would have resulted in significant pain.” According to the examiner, there was no constant pain, but moderate intermittent pain, moderate paresthesias/dysesthesias and moderate numbness in both lower extremities. Radiculopathy affected the sciatic nerve roots on both sides. There was no ankylosis. The examiner wrote that the Veteran used a cane constantly. When asked to describe the disability’s functional impact, the examiner wrote, “[Activities of daily living] have decreased due to his inability to stand for greater than 10 minutes and sit greater than 10 minutes at a time.” The Veteran underwent his most recent back examination in March 2018. The examiner’s report indicates that, during initial range of motion testing, forward flexion was zero to 60 degrees and extension was zero to 10 degrees. Right and left lateral flexion were both zero to 10 degrees. Both right and left lateral rotation were also zero to 10 degrees. There was pain during all of these movements and also evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing without additional loss of range of motion. The examiner indicated that estimates of range of motion after repeated use over time and during flare-ups would require speculation. There was reduced muscle strength during flexion of both hips (4/5) and right knee extension (4/5), but other lower extremity muscle strength test results were normal. There was no muscle atrophy. The Veteran’s reflexes were normal. But he experienced decreased sensation to light touch in both lower legs/ankles and in the both feet and in his toes on both sides. With respect to peripheral nerve symptoms, the March 2018 examiner wrote that there was mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias and mild numbness on both sides. These symptoms involved the sciatic nerve roots. There was no ankylosis. According to the examiner, the Veteran did have intervertebral disc syndrome (IVDS) but he had no periods of physician-prescribed bed rest during the previous year. According to the examiner, the functional effects of the spine disability were that it limited prolonged standing, walking, and bending. The examiner wrote that, “The Veteran's thoracic and lumbar spondylosis severely impede his ability to work in any occupation.” The Veteran submitted a report from a vocational consultant, dated December 2018, which describes daily pain in the back and lower extremities. The report indicates that, at rest, the Veteran assessed his pain at a 2-3 on a scale of 0 to 10. But with movement pain became 6-7. The report mentions “flare-ups 30-40 days per year in his back. His low back and lower extremity pain increases in severity which further limits his ability to stand, walk, or sit for any prolonged period of time. He is unable to engage in any meaningful activity during a flare-up.” The consultant’s report includes a summary of the Veteran’s education and work history, which is essentially consistent with the Veteran’s written TDIU application, and a statement from the Social Security Administration (SSA) indicating the monetary amounts he received for paid work between 1960 and 2001. Based on his interview with the Veteran, the consultant reported that the Veteran stopped attending high school in the 10th grade. After leaving the Coast Guard, he worked as a television repairman between 1983 and 2002. The report and the SSA statement indicate that he has not performed paid work during the relevant appeal period. According to the consultant, the spine and neuropathy disabilities prevent even sedentary employment because the Veteran is unable to lift, carry, push, pull or move objects and needs frequent unscheduled breaks (every 20 minutes, more frequently during flare ups). The report quotes the July 2017 VA examiner’s statement that the Veteran was experiencing difficulty with activities of daily living “due to his inability to stand for greater than 10 minutes and sit greater than 10 minutes at a time. . .” In the consultant’s opinion, “it is at least as likely as not that the veteran has been unable to secure and follow substantially gainful employment since at least April, 2012, due to his service-connected back (lumbar and thoracic spondylosis) and bilateral lower extremity polyneuropathy.” Analysis: Increased Ratings In its vacated January 2018 decision, the Board denied a rating higher than 20 percent for the spine because the range of motion test results indicated that he was capable of forward flexion of between 45 and 55 degrees. The general rating formula, as noted, authorizes a 40 percent rating in cases of favorable ankylosis or when forward flexion is 30 degrees or less. See 38 C.F.R. § 4.71a. In their JMR, the parties criticized this ruling for failing to adequately address additional functional loss during flare-ups or due to weakness, fatigability or pain on movement. See Deluca, 8 Vet. App. at 205-06. The JMR suggested that the January 2018 decision failed to adequately reconcile its denial of a 40 percent rating with DeLuca given the July 2017 examiner’s statement that the disability prevented the Veteran from sitting or standing for more than 10 minutes. Based on the statement in the vocational consultant’s report indicating extremely severe, debilitating, flare-ups occurring 30 or 40 days each year, the Board granted a 40 percent rating, effective March 7, 2018 (the date of the most recent VA examination) based on the finding that his symptoms most closely approximated incapacitating episodes with a duration of between four and six weeks during the past 12 months. There is no evidence of physician-prescribed bed rest, which is part of the definition of an “incapacitating episode” provided by note (1) to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a. Nevertheless, the same result is can be justified by 38 C.F.R. § 4.40 and DeLuca. Citing these authorities, the Veteran’s attorney argued for “at least a 40-percent rating for the entire period on appeal.” One problem with this argument is a clear implication of the description of the frequency and duration of the flare-ups in the December 2018 vocational consultant’s report. If the Veteran experienced flare-ups for 30 to 40 days each year, as the report indicates, then for almost 11 months of each year, he experienced symptoms which are less severe. Indeed, the evidence weighs against a finding that the symptoms of the Veteran’s back and peripheral nerve disabilities have approximated the criteria for 40 percent ratings for the entire appeal period. The statement in the July 2017 examination report – that his symptoms diminished the Veteran’s ability to perform activities of daily living “due to his inability to stand for greater than 10 minutes and sit greater than 10 minutes at a time” – does support such a 40 percent rating. But the July 2015 VA treatment note suggests that the Veteran was completely independent in his activities of daily living. His most recent VA treatment records, prepared after multiple increases in the severity of his symptoms indicated by the Veteran in his April 2015 substantive appeal, by his former representative in an October 2015 statement (“The appellant also asserts his lumbar spine disability and polyneuropathy has become worse since the July 29, 2014 VA examination”) and by the Veteran in an October 2017 statement (“I have gotten even worse”) still contain descriptions indicating a lesser degree of disability at certain times. In March 2018, he told his primary care physician that his “low back and right leg pain [were] tolerable” and in April 2018 he corrected an earlier report of intense low back pain: “Patient comes for follow up. Patient states his low back pain is not to [sic] bad 10% (NOT 10/10.... he states he miscommunitated [sic] his level to nurse). . .” For both the back and lower extremity disabilities, a staged rating would be more consistent with the evidence. Varying descriptions of the effects of the Veteran’s polyneuropathy support this conclusion. As noted, the Veteran testified that he “can’t feel anything form mid calve [sic] down.” But according to July 2017 examiner, except for the feet and toes, sensation to light touch was normal throughout both lower extremities. And even in the feet and toes, the examiner indicated that sensation was “decreased” rather than “absent.” The findings of the March 2018 examiner were similar, indicating decreased – rather than absent – sensation in the toes, feet, and ankles. There is no evidence that polyneuropathy has ever caused muscle atrophy or trophic changes. And muscle strength test results in the lower extremity were still either normal or at least consistent with significant continuing strength (4/5), even in March 2018, when the examiner described the Veteran as being unable to work in any occupation. For much of the appeal period, the 20 percent rating assigned for moderate incomplete paralysis of the sciatic nerve, is appropriate. According to the September 2012, June 2014, and July 2017 VA examiners, reflexes in the lower extremities were normal and pain from polyneuropathy was either absent entirely or intermittent, rather than constant. The March 2018 examiner, describing symptoms during which the Veteran has already been assigned a 40 percent rating, was the first to indicate constant pain in the lower extremities and described that pain as “mild” rather than moderate and severe. This evidence suggests that, for the Veteran’s polyneuropathy, for much of the period prior to June 22, 2017, his peripheral nerve symptoms more closely approximated the criteria for a 20 percent rating. But because of the Veteran’s description of pain, weakness, and fatigability during flare-ups and the need to reconcile this decision with 38 C.F.R. § 4.40 and DeLuca, the previously assigned staged ratings potentially understate the severity of his symptoms. To avoid the possibility of undercompensating him, the Board will move forward the effective dates of the 40 percent ratings previously assigned to his back and lower extremity disabilities to give effect to the statement he made to the vocational consultant in December 2018 concerning the frequency and duration of flare-ups: “flare-ups 30-40 days per year in his back. His low back and lower extremity pain increases in severity which further limits his ability to stand, walk, or sit for any prolonged period of time. He is unable to engage in any meaningful activity during a flare-up.” There were five years, 2 months, and 13 days (or 1900 days) between the beginning of the appeal period (April 9, 2012) and the effective date previously assigned for both 40 percent ratings for polyneuropathy (June 22, 2017). Granting the Veteran the benefit of the doubt, the Board will assume, in spite of the statements about increasing severity, that for the purpose of these calculations, he experienced precisely 40 days of debilitating flare-ups per year – or almost 11 percent of the time – during this period, i.e., 209 days. Before applying this 209 day adjustment, the Board will make yet another highly favorable assumption in by moving forward the effective date of the 40 percent rating for the lumbar and thoracic spine so that it coincides with the previously granted date of June 22, 2017 for both right and left lower extremity polyneuropathy. As noted, the description of flare-ups emphasized simultaneous back and lower extremity pain. For these reasons, the Board will assign a new effective date of November 25, 2016 for all three 40 percent ratings (thoracic and lumbar spine, right lower extremity polyneuropathy and left lower extremity polyneuropathy). The Board acknowledges that the most recent March 2018 VA examiner failed to comply strictly with 38 C.F.R. § 4.59, Correia, and Sharp. The examiner declined to estimate range of motion during flare-ups or after repeated use over time and it is unclear whether the physician elicited information from the Veteran about range of motion during these times. The examiner also did not provide separate range of motion test results for the testing methods described in 38 C.F.R. § 4.59. Fortunately, the Board is able to conclude that, because of the April 2019 decision increasing the rating assigned to the Veteran’s spine condition from 20 percent to 40 percent and the Board’s present decision to move forward the effective date of that 40 percent rating to November 25, 2016, the failure of the most recent VA examiner to strictly comply with Correia and Sharp is harmless error. In general, the Board must consider whether disabilities resulted in a level of functional loss greater than that already contemplated by the assigned rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 206. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. But a 40 percent rating under the General Rating Formula for Diseases and Injuries of the spine is assigned for 30 degrees or less of thoracolumbar forward flexion or favorable ankylosis of the entire thoracolumbar spine and a higher rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The DeLuca line of cases does not apply to the analysis for rating disabilities beyond the highest schedular evaluation based on limited motion when a higher evaluation requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The purpose of testing range of motion in the ways described in 38 C.F.R. § 4.59 is to apply rating criteria which consider the extent of any limited motion in the relevant joint. Thus, the reasoning of Johnston applies when a Veteran is in receipt of the highest schedular rating based on limited motion and an examination fails to comply with Correia. The decision to move forward the assigned effective date of all three ratings to November 25, 2016 further diminishes the probability of prejudice to the Veteran. All of the examination reports provided range of motion test results which are inconsistent with a finding of ankylosis, favorable or unfavorable. For this reason, to the extent that the Veteran seeks a rating higher than 40 percent for his lumbar spine, that claim is denied. The Board will also deny ratings higher than 40 percent for lower extremity polyneuropathy at any time during the appeal period. As noted in the manual provision, marked muscle atrophy is expected to accompany severe incomplete paralysis. In this case, there is no evidence that the Veteran’s polyneuropathy has caused muscle atrophy of any kind. Analysis: TDIU VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran's earned annual income is below the poverty threshold and in other limited circumstances. Id. At the time of the April 2019 decision and remand, the Veteran met the schedular criteria for TDIU only for the period after June 22, 2017. Because there was evidence that service-connected disabilities may have prevented employment before then, the Board explained that the Veteran might still potentially be eligible to receive a TDIU rating on an extraschedular basis pursuant to subsection (b) of the regulation. Because the Board did not have the authority to award an extraschedular rating unless the issue was first been referred to the Director of the Compensation Service, see Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015), the Board remanded the request for a TDIU prior to June 22, 2017 to the AOJ in order to refer that issue to the Director. As requested, the AOJ referred the issue of a TDIU prior to June 22, 2017 to the Director of the Compensation Service for extraschedular consideration. The Director issued a decision denying the extraschedular rating. Because the Director has considered the question in the first instance, the Board now has jurisdiction to consider the award of an extraschedular TDIU rating. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). When deciding a TDIU claim, the Board must take into account the individual veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court clarified the consequences of referrals for extraschedular TDIU. The Court determined that a decision to refer a claim to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b) is a factual finding, but the referral does not necessarily require the Board to award an extraschedular rating. Id. at 65. However, the Board must ensure that it adequately explains its reasoning when a factual finding made at the referral stage comes out differently at the review stage. Id. at 66. From the information provided by the Veteran, by SSA, and in the December 2018 report of the vocational consultant, it is clear that the Veteran had not performed paid work during the relevant period (April 9, 2012 to June 22, 2017). In his post-remand brief, received in September 2019, the Veteran’s attorney made several persuasive criticisms of the Director’s decision memorandum. For example, the Director seems to have been mistaken in attributing some of the disabling effects described in the December 2018 consultant’s report to non-service-connected disabilities. It is clearly the consultant’s opinion that service-connected back and lower extremity disabilities have prevented the Veteran from working during the relevant period. The Board has considered the possibility of assigning a TDIU rating corresponding to the effective date changes in the schedular ratings previously ordered by this decision. Having reviewed the evidence, there probably have been isolated periods of days or weeks during the relevant period when the Veteran was capable of performing paid work. But the consultant’s report persuasively argues that it is unlikely that full-time employment, even in a sedentary job, would be consistent with the Veteran’s unpredictable need for frequent breaks and his difficulty with prolonged sitting, standing, or lifting. The Board is required to consider the Veteran’s individual education, experience, and work history in reviewing the denial of a TDIU rating. See Pederson, 27 Vet. App. at 286. These factors, particularly his lack of an education beyond 10th grade and his most recent work experience in the field of television repair almost twenty years ago, suggest that he has been unemployable during the relevant period. For these reasons, the evidence is at least evenly balanced as to whether, due to service-connected disabilities, the Veteran has been unable to secure or follow a substantially gainful occupation. Resolving reasonable doubt in the Veteran's   favor, a TDIU rating will be assigned on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), effective April 9, 2012. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.