Citation Nr: 21009342 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 06-17 813A DATE: February 22, 2021 ORDER Entitlement to service connection for chronic pain syndrome is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), insomnia, bipolar disorder, depression, and anxiety is denied. Entitlement to a disability rating in excess of 100 percent is denied. Prior to June 12, 2018, entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine is denied. From June 12, 2018 to April 28, 2019, entitlement to a disability rating of 20 percent, but no higher, for degenerative joint disease of the lumbar spine is granted. From April 29, 2019, entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine is denied. From April 9, 2008, to June 11, 2018, a 10 percent disability rating, but no higher, for radiculopathy, right lower extremity is granted. From June 12, 2018, a 20 percent disability rating, but no higher, for radiculopathy, right lower extremity is granted. Entitlement to an effective date prior to August 16, 2010, for a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a disability manifested by chronic pain syndrome at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), insomnia, bipolar disorder, depression, and anxiety, was incurred during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that any current acquired psychiatric disorder was caused, or aggravated, by a service-connected disability. 4. The Veteran is in receipt of a total disability rating based upon individual unemployability due to his service-connected disabilities. 5. The Veteran does not have a total disability rating based upon a single disability; he is not permanently bedridden; and he does not regularly require aid and attendance of another person due to service-connected disabilities. 6. Prior to June 12, 2018, the Veteran’s degenerative joint disease of the lumbar spine manifested with forward flexion to greater than 60 degrees. 7. From June 12, 2018 to April 28, 2019, the Veteran’s degenerative joint disease of the lumbar spine was manifested by forward flexion to at least 35 degrees; forward flexion range of motion to 30 degrees or less and ankylosis of the lumbar spine were not present. 8. From April 29, 2019, the Veteran’s degenerative joint disease of the lumbar spine is manifested by forward flexion to at least 35 degrees; forward flexion range of motion to 30 degrees or less and ankylosis of the lumbar spine are not present. 9. From April 9, 2008, to June 11, 2018, the Veteran’s radiculopathy, right lower extremity was “mild” in severity. 10. From June 12, 2018, the Veteran’s radiculopathy, right lower extremity is “moderate.” 11. Prior to August 16, 2010, the Veteran was not prevented from obtaining and maintaining substantially gainful employment consistent with his educational and occupational background due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic pain syndrome due to service or a service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, insomnia, bipolar disorder, depression, and anxiety, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. There is no legal basis for the assignment of a disability rating for in excess of 100 percent. 38 U.S.C. §§ 1114, 1155, 5107; 38 C.F.R. § 3.350. 4. The criteria for a disability rating in excess of 10 percent prior to June 12, 2018, for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 5. From June 12, 2018 to April 28, 2019, the criteria for a disability rating of 20 percent, but no higher, for degenerative joint disease of the lumbar spine were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 6. From April 29, 2019, the criteria for a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 7. From April 9, 2008, to June 11, 2018, the Veteran’s radiculopathy, right lower extremity was mild in severity. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.124, 4.124a, DC 8520. 8. From June 12, 2018, the Veteran’s radiculopathy, right lower extremity is moderate in severity. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.124, 4.124a, DC 8520. 9. The criteria for a TDIU prior to August 16, 2010, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2001 to June 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated November 2009 (acquired psychiatric disorder), November 2011 (earlier effective date for a TDIU), September 2017 (lumbar spine and a special disability rate), and January 2019 (chronic pain syndrome) by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing for some of the claims in this case, as shown by his April 2020 substantive appeal. The Veteran withdrew his request for a hearing before the Board in June 2020. As such, his hearing request is deemed withdrawn. 38 C.F.R. §§ 20.702(e); 20.704(e). The Board remanded the claim for an acquired psychiatric disorder for additional development in December 2013, September 2014, July 2015, August 2017, and July 2019. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board also previously remanded the claim for service connection for chronic pain pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Subsequently, the RO issued a statement of the case (SOC) and the Veteran timely appealed the claim for chronic pain syndrome to the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for chronic pain syndrome The Veteran seeks service connection for chronic pain syndrome. The Veteran reports constant, severe pain in his leg, knee, hip, and back. He contends that he has chronic pain from his service-connected conditions that warrants a separate disability rating. The question for the Board is whether the Veteran has a current disability manifested by chronic pain syndrome that began during service or is at least as likely as not related to an in-service injury, event, or disease. VA treatment notes reflect the assessment of chronic pain syndrome. In May 2008, the Veteran appeared with a long history of mood disturbance, irritability, auditory hallucinations, and behavioral problems. Treatment providers assessed bipolar disorder, chronic pain disorder, and alcohol use disorder. In June 2016, the Veteran reported increased irritability and insomnia. He indicated this was especially so when he was aggravated or in pain. Treatment providers assessed bipolar disorder, chronic pain syndrome, and alcohol abuse in remission. The Veteran underwent a VA examination in November 2009. The Veteran reported pain in his right side, extending down to his right knee. He reported stiffness and weakness. The examiner diagnosed myositis ossificans of the right thigh and knee, and right knee osteoarthritis. The Veteran underwent a VA examination for muscle injuries in August 2010. He reported pain in the right thigh and leg. The examiner, after a physical examination, diagnosed myositis ossificans, severe degenerative arthritis of the right hip, and moderate degenerative joint disease of the right knee. The Veteran underwent a VA examination for mental disorders in October 2016. Relevant medical history noted rotator cuff syndrome and pain in the shoulder joint, hip and pelvic pain, low back pain and a history of a back contusion, and degenerative joint disease of the knee and ankle. The examiner opined that the Veteran did not meet the diagnostic criteria for chronic pain syndrome per the DSM-V. The examiner instead found the Veteran’s presentation was consistent with a personality disorder. The Veteran underwent a VA examination in January 2020. The Veteran reported symptoms of insomnia and disturbed sleep due to pain issues. The examiner opined that the Veteran did not meet the criteria for a diagnosis of chronic pain syndrome. Instead, the examiner found that the Veteran had a diagnosis of unspecified bipolar and related disorder. The Board concludes that the Veteran does not have a current diagnosis of a chronic pain syndrome disability under the DSM-V. The Board acknowledges that VA treatment records indicate assessment of chronic pain syndrome in the context of the Veteran’s psychiatric treatment. The Board, however, gives more probative weight to the January 2020 VA examination report. The January 2020 VA examination was performed by a licensed psychologist. The examiner assessed the Veteran for chronic pain syndrome, and expressly found that he did not meet the necessary diagnostic criteria for a diagnosis of chronic pain syndrome under the DSM-V. The Board finds this opinion to be significant probative weight as it considers the Veteran’s lay statements, his medical history, and specialized medical knowledge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The findings of the January 2020 examiner are also supported by the findings of the October 2016 examiner. These examinations collectively indicate that the Veteran’s symptoms do not meet the criteria for a clinical diagnosis of chronic pain syndrome. While the Veteran believes he has a current diagnosis of chronic pain syndrome, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent VA examination reports. Ultimately, the competent evidence of record is against a diagnosis of a chronic pain syndrome disability during the appeal period; as such, service connection for chronic pain syndrome must be denied. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Thus, the Board finds the preponderance of the evidence against the appeal. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), insomnia, bipolar disorder, depression, and anxiety The Veteran seeks service connection for an acquired psychiatric disorder. He asserts that his psychiatric condition is related to a stressor in service. He reported an in-service training injury and the death of a sergeant at Fort Gordon. The Veteran indicated that he had ongoing nightmares. Alternatively, the Veteran asserts that his acquired psychiatric disorder is related to or aggravated by chronic pain syndrome. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records are silent for complaints, diagnosis, or treatment of a mental health condition. The Veteran has reported that a sergeant was killed. However, he was unable to provide a name for the sergeant and the RO was unable to otherwise substantiate this stressor. The Veteran underwent a VA examination in October 2016. The Veteran reported that he was injured during a night training exercise. He reported nightmares and a history of treatment for substance abuse. The examiner diagnosed alcohol dependence in remission, cluster B personality traits-specifically antisocial, and rule out mood disorder due to medical condition. While the examiner offered a negative nexus opinion regarding the Veteran’s chronic pain syndrome, no nexus opinion was offered with respect to the Veteran’s acquired psychiatric disorder. The Veteran underwent a VA examination in January 2020. The examiner diagnosed unspecified bipolar disorder. He found that the Veteran did not meet the diagnostic criteria for PTSD. The examiner opined that the Veteran’s claimed mental condition was less likely than not incurred in or related to service. The examiner explained that there is no evidence of a diagnosis or treatment disorder for bipolar or any other mental health issues during service. He also noted that unspecified bipolar and related disorders are theorized to be a neurobiological disorder, which would not be caused by an in-service stressor. The VA examiner offered an addendum opinion in July 2020. He indicated that he could not opine that the various service-connected physical health conditions aggravated the Veteran’s unspecified bipolar and related disorder beyond its natural progression. The examiner explained that unspecified bipolar disorder is theorized to be a neurobiological disorder, and that changes in symptoms may be due to neurological factors. It was noted than an individual with unspecified bipolar and related disorder may experience increases in symptoms in the absence of chronic pain or any other aggravating factors. Further, the symptomology associated with unspecified bipolar disorder is considered to be cyclical, meaning that it will increase and decrease over time in the absence of any external or aggravating factors. Due to the cyclic nature of the Veteran’s mental disorder, the examiner concluded that he could not opine on whether the symptoms were aggravated by his reported chronic pain and resulting physical limitations, or the result of the natural course of the diagnosis of unspecified bipolar and related disorder. To do so, the examiner found that he would need to resort to mere speculation to determine the etiology and impact of the service-connected physical conditions upon the bipolar symptoms. The Board concludes that, while the Veteran has a current diagnosis of unspecified bipolar and related disorder, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of unspecified bipolar and related disorder was caused, or aggravated by, active service, or is otherwise related to an in-service injury, event, or disease. In making this determination, the Board finds probative the opinion of the January 2020 examiner and the July 2020 addendum opinion. The 2020 examiner opined that the Veteran’s unspecified bipolar disorder is not at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s service-connected physical disabilities. The examiner explained that service treatment records were silent for diagnosis or treatment of a mental health condition. Further, the examiner explained that unspecified bipolar disorder is a neurobiological disorder, which would not be caused by an in-service stressor or event. Regarding secondary service connection, the examiner indicated that he could not provide an opinion that the Veteran’s unspecified bipolar disorder was caused, or aggravated by, any service-connected condition. The examiner explained that unspecified bipolar disorder symptoms are cyclic, and that it is thus impossible to determine whether the Veteran’s bipolar symptoms are aggravated by his service-connected disabilities or simply the natural result of the cyclic nature of the disorder. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his acquired psychiatric disorder is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue; he is not competent to provide an opinion on complex medical questions such as the etiology of clinical psychiatric disorder as the record does not show that he has the medical training or credentials to make such a determination. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the January 2020 VA examination and July 2020 addendum report. The Veteran’s representative contends that the 2020 VA medical opinions are inadequate. He argues first that the examiner conflated two findings with respect to the Veteran’s claimed stressor, and that the examiner relied upon the absence of mental health treatment or diagnosis during service. The Board disagrees. For the reported stressor, the examiner explained that the Veteran’s clinically diagnosed unspecified bipolar disorder is theorized to be a neurobiological disorder, which the examiner found would not be caused by the claimed stressor. Additionally, while the examiner noted the absence of mental health treatment or a psychiatric diagnosis during service, the examiner did not rely solely on the absence of medical treatment to support his opinion. Thus, the Board finds the 2020 VA opinion and addendum report adequate. In sum, the competent evidence does not establish a nexus between any currently diagnosed psychiatric disorders and the Veteran’s period of active service. Additionally, the evidence does not support that any currently diagnosed psychiatric disorder has been caused, or aggravated, by any service-connected condition. Accordingly, entitlement to service connection is not warranted. 38 C.F.R. §§ 3.102, 3.303, 3.310. Increased Rating Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 3. Entitlement to a special disability rating in excess of 100 percent The Veteran seeks a special disability rating. The Veteran asserts that his disabilities have a combined total of 130 percent to 140 percent. He contends that his service-connected disabilities should be rated at 110 percent. While the Veteran’s combined disability rating is less than 100 percent, entitlement to individual unemployability was granted in a November 2011 rating decision. The Veteran was assigned a total disability rating effective from August 16, 2010. As the Veteran’s combined disabilities have been assigned a total rating, there is no legal basis upon which to award a higher evaluation. Further, the Board notes that the combined rating table only reaches a maximum of 100 percent. See 38 C.F.R. § 4.25. As such, entitlement to a disability rating in excess of 100 percent is not warranted and the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). To the extent that the Veteran is arguing that he is entitled to special monthly compensation (SMC), the Board also finds that SMC is not warranted. See 38 C.F.R. § 3.350. Under 38 U.S.C. § 1114 (s), SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 -percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 C.F.R. § 3.350 (i). The evidence does not establish that the Veteran has a single service-connected disability rated as 100 percent disabling. The Board notes that the Court of Appeals for Veterans Claims has held that where a TDIU is based on a single disability, that award may satisfy the “rated as total” element of section 1114(s) for an award of SMC. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Veteran’s TDIU, however, was not granted based upon a single disability. The November 2011 rating decision that granted TDIU stated that it was granted based upon his service-connected disabilities of right thigh myositis ossificans involving muscle groups XIII and XIV, degenerative joint disease of the right hip with limited extension, degenerative joint disease of the right hip with limited flexion, degenerative joint disease of the right hip with limited abduction and severe degenerative joint disease of the right knee. As such, the Veteran’s TDIU cannot be used to meet the single service-connected disability rated as total required for SMC(s). See Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2011). SMC is also payable under 38 U.S.C. § 1114 (l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). The Board next notes that the need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350 (b). The evidence does not demonstrate that the Veteran is bedridden or requires regular aid and attendance of another person. As the evidence does not establish that the Veteran has a single service-connected disability rated as 100 percent disabling, is bedridden, or requires regular aid and attendance of another person; entitlement to SMC is not warranted. See 38 U.S.C. § 1114; 38 C.F.R. § 3.350. 4. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to April 29, 2019; and in excess of 20 percent, thereafter The Veteran contends that he is entitled to a higher rating. In a December 2011 statement, the Veteran reported, in relevant part, constant pain in his back. In August 2019, he reported that his pain is worse, and warranted assignment of a higher rating. In a September 2017 rating decision, the RO granted service connection for degenerative joint disease of the lumbar spine and assigned a disability rating of 10 percent effective April 9, 2008. In a June 2019 rating decision, the RO increased the disability rating for degenerative joint disease of the lumbar spine to 20 percent effective April 29, 2019. The Veteran’s degenerative joint disease of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the 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 rating is warranted for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. VA treatment records reflect ongoing complaints and treatment for chronic low back pain. In September 2008, the Veteran sought treatment for chronic back pain with right side radiculopathy. In April 2009, the Veteran sought treatment for chronic pain. Treatment providers assessed chronic low back pain and right hip pain resulting from chronic right leg pain with malposturing. In June 2013, the Veteran appeared at a kinesiotherapy consult for a scooter evaluation. He reported extreme pain in his back and right lower extremity. In June 2015, the Veteran appeared at a routine visit. He reported that his left shoulder, right hip, back, and leg pain had gotten worse. The Veteran underwent a VA examination in May 2016. The Veteran reported that his back had been hurting for a while. He denied flare-ups, but reported that he had difficulty moving around. The VA examiner diagnosed degenerative changes to the lumbar spine. Physical examination showed a reported range of flexion limited to 80 degrees; extension limited to 25 degrees; left and right lateral flexion limited to 30 degrees; left lateral rotation limited to 30 degrees; right lateral rotation limited to 30 degrees. Pain was noted on exam with right and left lateral rotation, but did not result in or cause functional loss. No additional loss of function or range of motion was noted after three repetitions. In June 2018, the Veteran appeared for physical therapy. He complained of lumbar back pain at 7/10, and indicated he was taking over-the-counter medication as needed. Forward flexion of the lumbar spine was noted at 35 degrees. The Veteran underwent a VA examination in June 2019. The Veteran reported progressively worsened back pain that he described as sharp, throbbing, and constant. He denied flare-ups. He reported that he could not go for long walks, sit for long times without stretching, bend, or go places without taking his scooter with him. Physical examination showed flexion limited to 35 degrees; extension limited to 10 degrees; left and right lateral flexion limited to 10 degrees; left lateral rotation limited to 20 degrees; right lateral rotation limited to 15 degrees. No pain was noted on examination, with passive range of motion testing, or with weight bearing. No additional loss of function or range of motion was noted after three repetitions. Passive range of motion findings were noted as the same as active range of motion. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to June 2018. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, and difficulty getting around. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences constant pain problems would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 60 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. In this regard, the May 2016 VA examination report reveals forward flexion of 80 degrees, well outside the 30 to 60 degrees limitation in forward flexion that would warrant a higher rating. Further, none of the treatment records prior to June 2018 report range of motion to less than 60 degrees, or that the Veteran’s guarding of the lumbar spine was had resulted in an abnormal gait or abnormal spine contour. As such, the Board finds that the preponderance of the evidence weighs against a rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to June 12, 2018. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. From June 12, 2018 to April 28, 2019, the Board finds that a rating of 20 percent, but no higher, is warranted for the Veteran’s lumbar spine disability. At the June 2018 physical therapy evaluation, the clinician’s physical examination revealed forward flexion limited to 35 degrees. Similarly, the June 2019 VA examination report revealed forward flexion limited to 35 degrees, with no noted functional loss after repetitions or between active and passive testing. This evidence demonstrates limitation in flexion of the lumbar spine to less than 60 degrees, but to not less than 30 degrees. Accordingly, a 20 percent rating is warranted for the Veteran’s lumbar spine disability since June 12, 2018. The Board, however, finds that a rating in excess of 20 percent under the General Rating Formula is not warranted after June 12, 2018, because the evidence shows that the Veteran’s limitation of lumbar flexion did not more nearly approximate flexion to 30 degrees or less. Specifically, each examination in the period has demonstrated forward flexion of the lumbar spine in excess of 30 degrees, including his June 2018 physical therapy evaluation. To the extent that the Veteran has reported pain on motion, any additional functional loss due to pain on motion was denied by the June 2019 examiner. Ankylosis of the entire thoracolumbar spine also was not recorded. It is not disputed that the Veteran has pain on motion, or other factors affecting function loss of the lumbar spine, such as weakness, fatigability, etc. However, the 20 percent rating granted for this period encompasses the complaints of pain and functional loss due to the lumbar spine disability. See DeLuca, 38 C.F.R. §§ 4.40, 4.45. Further, there was no additional limitation of joint function due to pain, fatigue, or lack of endurance noted after repetitive motion and flare-ups were denied by the Veteran. Accordingly, a rating in excess of 20 is not warranted under the General Rating Formula from June 12, 2018. Additionally, at no time did the Veteran report experiencing “incapacitating episodes” as that term defined in the regulations. The evidence does not show that bed rest was prescribed by a physician, nor has he so claimed. Accordingly, a higher rating pursuant to DC 5243 based on incapacitating episodes is not warranted from June 12, 2018. For these reasons, a 20 percent rating, but no higher, is warranted from June 12, 2018 to April 28, 2019; and from April 29, 2019, a rating in excess of 20 percent is denied for the Veteran’s lumbar spine disability. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5242. Based on the foregoing, the preponderance of the evidence supports a 10 percent disability rating prior to June 12, 2018; a 20 percent rating, but no higher, from June 12, 2018 to April 28, 2019; and does not support a rating in excess of 20 percent from April 29, 2019; for degenerative joint disease of the lumbar spine. In denying a rating in excess of 10 percent prior to June 12, 2018, and in excess of 20 percent thereafter, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Right Lower Extremity Radiculopathy The Veteran was granted entitlement to a 10 percent rating for radiculopathy, right lower extremity associated with degenerative joint disease of the lumbar spine, effective April 29, 2019 in a June 2019 rating decision. As discussed above, under the General Formula, associated objective neurologic abnormalities are rated separately under their respective diagnostic codes. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). As such, entitlement to a higher initial rating for right lower extremity radiculopathy is considered part and parcel of the Veteran's higher initial rating claim for his lumbar spine disability and will be considered from the Veteran's date of claim for a lumbar spine disability. Under DC 8520, 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 assignable for moderately severe incomplete paralysis. A 60 percent rating is assignable for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is assignable for complete paralysis of the sciatic nerve, in which the foot dangles and drops and there is no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve 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. From April 9, 2008, to June 11, 2018, the Board finds that a separate 10 percent rating, but no higher, is warranted for mild right lower extremity radiculopathy. 38 C.F.R. §§ 4.3, 4.124a, DC 8520. While a formal diagnosis of lumbar radiculopathy is not established until June 2019, the Board finds that a 10 percent rating is warranted from the Veteran’s date of claim for service connection for a back disability. The Veteran was reported to have chronic low back pain with right lower extremity radiculopathy by a VA physician in a June 2008 treatment record. He was also reported to have right limb radiculopathy in June 2013 kinesiotherapy consult. As such, the Board finds that a separate 10 percent rating for right lower extremity radiculopathy is warranted from April 9, 2008, to June 11, 2018. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) ("effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested"). The Board, however, finds that a rating in excess of 10 percent is not warranted for this period. Specifically, the Board finds, the Veteran's reports of radiating pain in this period are indicative of "mild" right lower extremity radiculopathy. The Board finds probative the findings of the May 2016 VA examiner that did not provide a finding of right lower extremity radiculopathy on examination, which is indicative of at most “mild” symptoms. Further, the examiner reported only decreased sensation in the right lower extremity and hypoactive reflexes of the right knee and ankle. Symptoms of numbness, paresthesias, and dysesthesias were not reported. Treatment records from this period also do not report more than occasional complaints of radiating pain. Based upon the weight of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for right lower extremity radiculopathy from April 9, 2008, to June 11, 2018. Accordingly, the Board finds that an initial rating of 10 percent, but no higher, for right lower extremity radiculopathy is warranted from April 9, 2008, to June 11, 2018. 38 C.F.R. §§ 4.3, 4.124a, DC 8520. For the period from June 12, 2018, the Board finds that a rating of 20 percent, but no higher, is warranted for the Veteran’s right lower extremity radiculopathy. The Board notes that the Veteran reported worsening of his lumbar spine symptoms in June 2018. During a subsequent VA examination in June 2019, the Veteran was recorded to have symptoms that are consistent with “moderate” right lower extremity radiculopathy. Specifically, the examiner reported “moderate” constant pain and “moderate” numbness. Accordingly, the Board finds that 20 percent rating, but no higher, is warranted for right lower extremity radiculopathy during this period. In making this determination, the Board finds probative that the June 2019 examiner did not describe the overall severity of the Veteran’s right lower extremity radiculopathy as more than “moderate.” Additionally, none of the symptoms were reported to be of “severe” severity and paresthesias, and dysesthesias were not reported. The Board notes that the examiner did not report muscle atrophy or reduced muscle strength of the right lower extremity, which may be indicative of radiculopathy of greater severity. VA and private treatment records also do not report lower extremity muscle atrophy or the presence of a foot drop for the right lower extremity. As the totality of the evidence does not indicate greater than “moderate” severity radiculopathy during this period, the Board finds that a rating in excess of 20 percent for right lower extremity radiculopathy from June 12, 2018, is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520. 5. Entitlement to an effective date prior to August 16, 2010 for a total disability based upon individual unemployability (TDIU) VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Entitlement to a TDIU was granted in a November 2011 rating decision, effective August 16, 2010, based upon when the Veteran first met the schedular requirements for an award of a TDIU. The Veteran seeks a TDIU prior to August 16, 2010. In a September 2004 statement, the Veteran the Veteran filed an informal claim for a TDIU and asserted that he was 100 percent disabled. In November 2004, the Veteran filed an informal notice of disagreement in connection with an increased rating for his right thigh. The Veteran stated that he could no longer hold a job because of his injury of myositis ossificans while in service. In an October 2005 statement, he indicated that his disabilities warranted individual unemployability. He reported that his right thigh disability sometimes collapsed when standing or walking, and that he had pain in his right thigh, back, shoulders, hands, and arms. He reported constant pain due to his disabilities. The Veteran’s claim for a TDIU has been pending since September 2004. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). However, consideration may not be given to individual veteran’s age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held the phrase “substantially gainful employment” has an economic component and a non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). “The economic component simply 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.” Id. The noneconomic component goes to the veteran’s individualized ability to secure and follow substantially gainful employment. Ray, 31 Vet. App. at 73. Attention must be given to the veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy); and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. Specific provisions for TDIU apply to incarcerated Veterans. Under 38 C.F.R. § 3.341 (b), a rating for TDIU which would first become effective while a Veteran is incarcerated in a penal institution for conviction of a felony, shall not be assigned during such period of incarceration. See 38 U.S.C. § 5313 (c). Adjudication of TDIU is prohibited if that rating would begin while the Veteran is incarcerated for a felony conviction. See VAOPGCPREC 13-97 (Apr. 7, 1997). Accordingly, entitlement to TDIU may be denied as a matter of law if the TDIU rating would commence during a period of incarceration for a felony. Here, the Veteran is service-connected for right thigh myositis ossificans (rated 10 percent prior to August 16, 2010); right knee osteoarthritis (rated 10 percent from April 9, 2008 to August 16, 2010); degenerative joint disease of the lumbar spine (rated 10 percent between April 9, 2008 to August 16, 2010); and radiculopathy, right lower extremity (rated 10 percent between April 9, 2008 to August 16, 2010). The Veteran’s combined disability ratings, in pertinent part, are 10 percent prior to April 9, 2008; and 30 percent from April 9, 2008 to August 16, 2010. 38 C.F.R. § 4.25. Thus, the Veteran does not meet the schedular criteria for an award of a TDIU prior to August 16, 2010. Where a Veteran does not meet the percentage requirements, but there is evidence of unemployability due to the Veteran’s service-connected disabilities, the claim for TDIU will be referred to the Director of VA’s Compensation and Pension Service. See 38 C.F.R. § 4.16 (b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first ensure that the TDIU claim is referred to the Director of Compensation and Pension for adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the evidence does not show that the Veteran’s service-connected right thigh, right knee, lumbar spine and right lower extremity radiculopathy disabilities alone rendered him unable to secure or follow a substantially gainful occupation for the period prior to August 16, 2010 is warranted; accordingly, referral for extraschedular consideration is not warranted. 38 C.F.R. § 4.16 (b). As a preliminary matter, the evidence of record reflects that the Veteran was incarcerated from April 2004 to February 2007. As a result of his sentence, a TDIU shall not be assigned during the period of incarceration. As such, entitlement to TDIU may not begin from April 2004 to February 2007 is not warranted as a matter of law. In his February 2002 Application for Increased Compensation based upon Unemployability (VA Form 21-8940), the Veteran reported that he became too disabled to work in February 2002. In a December 2011 statement, the Veteran reported that he was disabled as far back as 2004, well before the effective date of the award of entitlement to a TDIU. In an October 2013 statement, the Veteran contended that the date of claim and effective date for entitlement to a TDIU should be July 2002 at the very latest. The Veteran reported a high school education and two years of college. The Veteran last worked in 2002. In a work history report that the Veteran submitted to the Social Security Administration (SSA), the Veteran reported that he had worked as a truck driver, maintenance person, pump operator, trailer shifter, juvenile detention youth care worker, and a laborer at a furniture department. The Veteran similarly reported past work as a Walmart furniture display manager and youth case manager or security specialist in his VA 21-8940. The Veteran underwent a consultative examination with the SSA in September 2002. The Veteran reported constant leg pain, stiffness, and that he had had his right knee give way. The clinician noted an abnormal gait with an antalgic pattern, pain in the right knee, and a medical history of myositis ossificans. The clinician opined that with his right leg problems, the Veteran was limited in standing, walking, and carrying. Subsequently, in August 2004, a favorable SSA determination was made based on the combination of right thigh myositis ossificans, arthritis in the knees, back and hips resulting in pain and weakness. The favorable SSA determination further noted left shoulder, arm, and hand pain and numbness, as well as treatment for a large varicocele tumor. VA treatment records reflect chronic thigh, hip and low back pain. In April 2003, the Veteran reported at a visit that his right leg gave way several times a day. Treatment providers assessed right knee pain, status post-surgery for myositis ossificans. October 2008 treatment notes show chronic hip, back and knee pain. The Veteran underwent a VA examination in November 2009. He reported constant right-sided pain that extended down into his right knee. He reported stiffness, weakness, and giving way approximately 4 times per week. He used a standard cane for short distances, and sometimes used crutches or a power scooter. Physical examination revealed moderately antalgic gait. The Veteran underwent a VA examination for muscle injuries in August 2010. The Veteran reported pain and difficulty walking. The examiner opined that the Veteran is unemployable. The examiner further noted that the Veteran could not walk more than 75 yards and was able to attend church when his scooter was functioning. Otherwise, all social activity was centered around his house. Apparently based upon the August 2010 examination, the RO granted a TDIU. After a review of the evidentiary record, the Board finds the evidence of record does not show that the Veteran was incapable of securing or following a substantially gainful occupation, consistent with his background, due solely to his service-connected disabilities prior to August 16, 2010. Regarding the economic component, there is no evidence of employment for the period on appeal. The Veteran has consistently reported that he last worked around 2002, and that he has not been employed since that time. Regarding the non-economic component, the evidence demonstrates that the Veteran has the physical and mental capabilities to engage in substantially gainful employment. That is, the Board finds that he could have performed activities that would be required by the type of occupations available to him based on his education, training and past work experience. In reaching this determination, the Board acknowledges that there is evidence that the Veteran’s service-connected right thigh, right knee, and low back disabilities affected his ability to function in an occupational environment prior to August 16, 2010. The record reveals the Veteran consistently reported pain, difficulty standing and walking, and instability. At his SSA consultative examination, the Veteran reported pain, instability and weakness in his right leg. VA treatment notes also show consistent reports of leg and back pain, weakness, and instability that required an assistive device for the Veteran to walk any distance. The November 2009 VA examination report shows pain, weakness, and instability in the right leg. The VA examiner found that the Veteran had limited ability to stand, walk long distances, or carry items. However, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. 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. Id. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321 (a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: “[g]enerally, the degrees of disability specified 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.” See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Based on the evidentiary record, the Veteran’s service-connected disabilities clearly cause some limitations regarding completion of physical or labor-intensive tasks. However, the Veteran’s work history and education indicate an aptitude for, and ability to secure, non-physically demanding work. The Veteran completed high school and had two years of additional education. His prior occupations include a mix of physically and non-physically demanding work. The Veteran’s prior job a furniture display manager, indicates some capacity for managerial duties. Further, in his work history report, the Veteran reported that his work as a truck driver did not require extensive lifting, standing, or walking. The Veteran asserted that he could not perform his work as a truck driver because he could not sit for long periods of time. Accordingly, the Board finds that the evidence does not support finding that he was precluded from securing or following substantially gainful employment as a result of his service-connected disabilities alone, during the period on appeal. Insofar as the Veteran’s service-connected disabilities had an effect on his occupational functioning, the assigned schedular ratings for the disabilities compensate him for such impairment. While the SSA made a disability determination favorable to the Veteran, that determination was based, in part, on non-service-connected disabilities, including his non-service-connected shoulder, arm, hand, and varicocele tumor issues. As such, the SSA’s determination has little probative weight. Given the entirety of the evidence of record, there is no basis for referral to the Director of Compensation for extraschedular consideration of a TDIU under 38 C.F.R.§ 4.16 (b). The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim and that doctrine is not applicable. See 38 U.S.C.§ 5107 (b). Entitlement to a TDIU before August 16, 2010, is not warranted. P. M. JOHNSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.