Citation Nr: 21010150 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 12-28 986 DATE: February 24, 2021 ORDER Entitlement to an initial 20 percent rating, but no higher, for left lower extremity radiculopathy, from July 24, 2007, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from July 24, 2007 through July 13, 2012, is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine, prior to March 15, 2013, is remanded. REFERRED The issues of entitlement to service connection for sleep disability and psychiatric disability (both to include as secondary to service-connected degenerative joint disease of the lumbar spine) were raised in statements from the Veteran dated in June 2013 and June 2020. These issues are referred to the agency of original jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. During the entire claim period since July 24, 2007, the evidence is at least evenly balanced as to whether the Veteran’s left lower extremity radiculopathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve. 2. During the period from July 24, 2007 through July 13, 2012, the Veteran was service-connected for the following disabilities: loss of use of the right lower extremity due to radiculopathy, rated 40 percent disabling; degenerative joint disease of the lumbar spine, rated 20 percent disabling; left lower extremity radiculopathy, now rated 20 percent disabling; tinnitus, rated 10 percent disabling, from August 29, 2008; and bilateral hearing loss, rated noncompensable, from August 29, 2008; his combined disability rating is now 70 percent, from July 24, 2007 through July 13, 2012. 3. During the entire claim period from July 24, 2007 through July 13, 2012, the Veteran’s service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating, but no higher, from July 24, 2007, for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124a, DC 8520. 2. The criteria for a TDIU due to service-connected disabilities, from July 24, 2007 through July 13, 2012, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to October 1970. These matters come before the Board of Veterans’ Appeals (Board) from a February 2010 rating decision, in which the AOJ denied entitlement to a rating in excess of 20 percent for mechanical low back pain. In September 2012, a Decision Review Officer (DRO) awarded service connection for right and left lower extremity radiculopathy and assigned initial 10 percent disability ratings, from August 29, 2008 and July 14, 2012, respectively. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2015 hearing and a transcript of the hearing is associated with his claims file. In November 2015, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU, as part and parcel of the claim for higher ratings for the service-connected back disability and right and left lower extremity radiculopathy. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue, as well as the issues of entitlement to higher ratings for the service-connected back disability and right and left lower extremity radiculopathy for further development. In August 2018, the AOJ made the following determinations: awarded an increased (40 percent) rating for degenerative joint disease of the lumbar spine, from March 15, 2013; awarded an increased (40 percent) rating for right lower extremity neurological disability (re-characterized as loss of use of the right lower extremity due to radiculopathy), from June 5, 2007; awarded an increased (20 percent) rating for left lower extremity radiculopathy, from March 15, 2013; and awarded a TDIU, from July 14, 2012. In March 2019, the Board made the following determinations: denied entitlement to a rating in excess of 20 percent, prior to March 15, 2013, and a rating in excess of 40 percent, since that date, for degenerative joint disease of the lumbar spine; denied entitlement to a rating in excess of 10 percent, prior to March 15, 2013, and a rating in excess of 20 percent, since that date, for left lower extremity radiculopathy; denied entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy; and denied entitlement to a TDIU, prior to July 14, 2012. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Court set aside the Board’s March 2019 decision, in part, and remanded to the Board the issues of entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine, prior to March 15, 2013; entitlement to a rating in excess of 10 percent, prior to March 15, 2013, and a rating in excess of 20 percent, since that date, for left lower extremity radiculopathy; and entitlement to a TDIU, prior to July 14, 2012, for readjudication in compliance with directives specified in a January 2020 Joint Motion filed by counsel for the Veteran and VA. In the November 2015 remand, the Board directed the AOJ to, among other things, obtain the Veteran’s outstanding VA treatment records and afford him a VA examination to assess the severity of his service-connected left lower extremity radiculopathy. Pursuant to the Board’s remand, the Veteran’s outstanding VA treatment records were obtained and associated with his claims file and he was afforded an appropriate VA examination in June 2018. Therefore, the AOJ substantially complied with the Board’s pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Veteran submitted a formal claim for a TDIU (VA Form 21-8940) on July 24, 2007. The AOJ interpreted the Veteran’s TDIU claim as also encompassing a claim for an increased rating for his service-connected back disability and, in an April 2008 rating decision, granted an increased (20 percent) disability rating for chronic mechanical low back pain, from July 24, 2007, and denied entitlement to a TDIU. The Veteran did not appeal this decision within one year of its issuance. Regardless, in September 2008 and April 2009, relevant VA treatment records and the report of an April 2009 VA back examination were associated with his claims file. In the February 2010 rating decision, the AOJ readjudicated the rating assigned for the Veteran’s service-connected back disability and denied a rating in excess of 20 percent. The current appeal originates from the February 2010 rating decision. In light of the evidence that was associated with the Veteran’s claims file, as described above, the Board finds that new and material evidence was received within a year of the April 2008 rating decision. Hence, that decision did not become final as to the rating assigned for the service-connected back disability and the Veteran’s claim for a TDIU. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after AOJ decision rendered AOJ decision non-final); 38 C.F.R. § 3.156 (a), (b). Therefore, the Veteran’s July 24, 2007 claim (which was interpreted by the AOJ as encompassing a claim for an increased rating for the service-connected back disability) remained pending at the time of the February 2010 rating decision. As the issue of entitlement to a higher initial rating for left lower extremity radiculopathy is before the Board as part of the claim for an increased rating for the service-connected back disability and the TDIU issue on appeal was raised as part and parcel of this increased rating claim, the claim period on appeal for the back, left lower extremity radiculopathy, and TDIU matters dates back to the Veteran’s July 24, 2007 claim. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code). I. Higher Initial Rating Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Entitlement to a higher initial rating for left lower extremity radiculopathy, rated noncompensable prior to July 14, 2012, 10 percent disabling from July 14, 2012 through March 14, 2013, and 20 percent disabling, from March 15, 2013. The Veteran’s left lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, DC 8520 as paralysis of the sciatic nerve. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. With regard to rating neurological disabilities, 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. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. 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. Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether the Veteran has manifested left lower extremity neurological symptoms of the type and extent, frequency, and/or severity, as appropriate to warrant a 20 percent rating, but no higher, during the entire claim period since July 24, 2007. VA treatment records dated from April 2007 to October 2009, the reports of VA back examinations dated in January 2008 and April 2009, a December 2009 VA general medical examination report, the reports of VA back and neurological examinations dated in July 2012, a July 2012 letter from a VA physician (D.F.), the Veteran’s October 2012 substantive appeal (VA Form 9), a June 2013 VA Form 9, the Veteran’s testimony during the September 2015 Board hearing, the report of a June 2018 VA back examination, and a June 2020 statement from the Veteran indicate that he reported that he experienced sharp back pain which radiated to both buttocks, legs, and feet (worse on the right) which would wake him up at night, occasional left leg/foot numbness, and leg and foot weakness which caused him to trip. The VA physician explained in his July 2012 letter that the Veteran had reported lower back and radicular symptoms since being treated at the VA Medical Center in Houston, Texas, that his symptoms were progressively worsening, that he required strong pain medications, and that since 2010 his bilateral lower extremity neurological disability had “deteriorated to the moderate to severe range based on signs and symptoms.” He used medications to treat his symptoms (e.g., gabapentin) and received steroid injections for his back and associated neurological symptoms (see e.g., a March 2008 VA operative note). Examinations revealed that the Veteran had an occasional list to the left with an antalgic gait and that he used a cane and walker to assist with ambulation. Deep tendon reflexes were occasionally trace to somewhat diminished (1+) at the left knee and absent to somewhat diminished (1+) at the left ankle/Achilles, left lower extremity muscle strength was occasionally somewhat impaired (4/5), and straight leg raise testing was occasionally positive on the left. There was no muscle atrophy and sensation was intact. The examiners who conducted the July 2012 and June 2018 VA back examinations concluded that there was mild to moderate radiculopathy involving the left sciatic nerve. The above evidence reflects that during the claim period, the Veteran’s left lower extremity radiculopathy has been manifested by radiating pain, numbness, occasional muscle weakness (4/5), and occasionally impaired left lower extremity reflexes (absent to somewhat diminished/trace (1+)). Impaired left lower extremity reflexes were noted during the January 2008 VA back examination. Also, the Veteran has experienced an impaired gait and he has required the use of assistive devices for ambulation. The Board acknowledges that the Veteran’s left lower extremity neurological symptoms have somewhat varied in intensity during the claim period and that his left lower extremity neurological findings have sometimes been found to be relatively normal. However, he has used pain medications and has received injections to treat his back and associated neurological symptoms. The Board points out that it “may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In other words, the Board cannot consider the ameliorative effects of medication unless medication is referenced in the applicable diagnostic code. That is precisely the situation in this case. The Board also acknowledges that the July 2012 VA examiner characterized the degree of left lower extremity neurological impairment as mild. However, that determination is not binding on the Board. 38 C.F.R. § 3.100 (a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present”). In this case, in light of the Veteran’s reported left lower extremity neurological symptoms (which were reported as early as 2007) and the clinical findings of occasionally impaired reflexes and decreased muscle strength, the Board finds that the evidence is at least evenly balanced as to whether the symptoms of his service-connected left lower extremity radiculopathy have more closely approximated the criteria for a 20 percent rating for paralysis of the sciatic nerve (i.e., moderate incomplete paralysis) under DC 8520 during the entire claim period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an initial 20 percent rating for left lower extremity radiculopathy is warranted for the entire claim period since July 24, 2007. However, the Board also finds that a rating higher than 20 percent is not warranted at any time during the claim period. In particular, the Veteran’s left lower extremity muscle strength has only been occasionally decreased to at most 4/5, his left lower extremity reflexes have only occasionally been impaired, left lower extremity sensation has consistently been found to be normal, there have been no findings of left lower extremity muscle atrophy, and the examiners who conducted the July 2012 and June 2018 VA examinations reported that there was at most moderate incomplete paralysis of the left lower extremity. In an October 2020 statement, the Veteran’s representative essentially contended that a 40 percent rating was warranted for the Veteran’s left lower extremity radiculopathy because of his impaired muscle strength and reflexes and the fact that the VA physician who completed the July 2012 letter had reported that the Veteran’s bilateral lower extremity neurological disability had “deteriorated to the moderate to severe range based on signs and symptoms.” As explained above, the overall characterization of the severity of the Veteran’s left lower extremity radiculopathy by the July 2012 VA physician is not binding on the Board. Overall, in light of the frequency and severity of the neurological symptoms reported by the Veteran and observed by medical professionals throughout the claim period (including left lower extremity muscle strength that has only occasionally been decreased to at most 4/5, left lower extremity reflexes that have only occasionally been impaired, and left lower extremity sensation that has consistently been found to be normal), the Board finds that the Veteran’s left lower extremity radiculopathy has been manifested by at most moderate incomplete paralysis of the sciatic nerve during the entire claim period. Hence, an initial 20 percent rating, but no higher, is warranted for left lower extremity radiculopathy, from July 24, 2007. See 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. § 4.7, 4.124a, DC 8520. As a final point, the Board notes that in conjunction with the appeal for a higher rating for left lower extremity radiculopathy, other than the issue of entitlement to a TDIU prior to July 14, 2012 which is addressed below, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). II. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). 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. Among other things, disabilities of one or both lower extremities, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system (e.g., orthopedic) will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU due to service-connected disabilities, prior to July 14, 2012 Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the Veteran’s service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him during the entire claim period from July 24, 2007 through July 13, 2012. During the period from July 24, 2007 through July 13, 2012, the Veteran was service-connected for the following disabilities: loss of use of the right lower extremity due to radiculopathy, rated 40 percent disabling; degenerative joint disease of the lumbar spine, rated 20 percent disabling; left lower extremity radiculopathy, now rated 20 percent disabling; tinnitus, rated 10 percent disabling, from August 29, 2008; and bilateral hearing loss, rated noncompensable, from August 29, 2008. The Veteran’s combined disability rating is now 70 percent during the entire period from July 24, 2007 through July 13, 2012. Therefore, he now meets the schedular requirements for a TDIU during this entire period. The remaining question is whether his service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him. In addition to the evidence already set forth above, the reports of VA examinations dated in April 1973, a February 1983 statement from the Veteran (VA Form 21-4138), VA treatment records dated from January 2005 to May 2007, the July 2007 VA Form 21-8940, an October 2007 VA social work note, a January 2008 VA back examination report, a January 2008 VA general medical examination report, an August 2008 “Income-Net Worth and Employment Statement” (VA Form 21-527), an August 2008 VA social work assessment note, a January 2009 certificate of visit completed by a VA physician assistant, the report of an April 2009 VA back examination, a December 2009 VA general medical examination report, the report of a December 2009 VA audiological examination, the Veteran’s testimony during the September 2015 Board hearing, a February 2017 VA Form 21-8940, a June 2020 VA Form 21-8940 and attached statement from the Veteran, and his Social Security Administration (SSA) disability records indicate that he completed 1 to 2 years of college and received additional training in funeral services and automobile repair. He had employment experience following service in the carbon industry and as a warehouseman, laborer, machinist, and mechanic. He experienced problems when he was employed due to back symptoms and lower extremity neurological symptoms which caused him to occasionally become unsteady and stumble while walking and limited his ability to use stairs, lift, bend, stoop, stretch, and stand and sit for prolonged periods. He stopped working sometime between 2000 and 2005 as a mechanic after many years due to medical problems (including increasing back limitations). Moreover, the Veteran subsequently worked for various periods in part-time positions as a monitor/counselor at adult and juvenile rehabilitation facilities, but he experienced difficulties in these positions because he was unable to use the stairs and “wrestle with the guys that got out of hand.” He was terminated from the most recent of these positions in 2007 or 2008 due to loss of significant time from work because of worsening back and leg symptoms and medical appointments. He subsequently performed some non-strenuous volunteer work for which he received minimal stipends. A report of his SSA earnings confirms that he did not have any gainful employment in 2007 or any year thereafter, and he was awarded SSA disability benefits on the basis of spinal stenosis. As for symptoms of the Veteran’s service-connected disabilities other than left lower extremity radiculopathy, he experienced back pain, tenderness, and stiffness, significantly limited and painful motion of the thoracolumbar spine, right lower extremity pain, weakness, numbness, and impaired reflexes, hearing loss, and tinnitus. He had an antalgic gait, used a cane to assist with ambulation, and was unable to lift more than 20 pounds, frequently bend, or stand, walk, or sit for prolonged periods due to his back and lower extremity neurological symptoms. The physician who conducted the January 2008 VA back examination explained that the Veteran was “disabled from any gainful employment” at the time of the examination. In a September 2020 vocational assessment report, vocational consultant K.M. Dillon, M.Ed., CRC reported that a telephone interview was conducted with the Veteran and that his entire claims file was review. The vocational consultant summarized the Veteran’s employment and volunteer experiences and noted that prior to July 2012, as a result of the Veteran’s service-connected back and right lower extremity neurological disabilities, he experienced difficulty with prolonged sitting, standing, and walking (i.e., more than 20 minutes) because of pain, weakness, and lower extremity swelling, had to constantly change positions throughout the day, experienced chronic pain that interfered with his ability to maintain attention and concentration, experienced falls, instability, and weakness, and experienced chronic daytime fatigue due to impaired sleep caused by his service-connected disabilities. The vocational consultant concluded that the Veteran was likely (“more likely than not”) unable to secure and follow substantially gainful employment (including unskilled non-physical employment) since at least July 2007 due to his service-connected back disability and right lower extremity radiculopathy. The vocational consultant explained, in pertinent part, that the Veteran was unable to perform the physical requirements of even predominantly non-physical employment as a result of his service-connected disabilities. Specifically, even non-physical employment required standing and walking up to 1/3 (or at least two and a half hours) of the workday and sitting most of the time. Therefore, the Veteran’s inability to perform prolonged standing, walking, and sitting due to his service-connected disabilities have precluded him from performing even non-physical employment since at least July 2007. His well-documented limitations in prolonged sitting and standing, and walking for up to one-third of the workday, are inconsistent with the exertional demands of even non-physical employment, as defined by the United States Department of Labor’s Dictionary of Occupational Titles. Also, the Veteran’s history of falling due to instability caused by his right lower extremity radiculopathy would contribute to his inability to perform the physical requirements of predominantly non-physical work. From a vocational standpoint, a risk of falling in the workplace would be considered a significant safety hazard, and subsequent liability would not be tolerated by employers at any skill or physical demand level. As a result of these limitations, the Veteran would likely (“more likely than not”) be precluded from performing the physical requirements of predominantly non-physical employment. The vocational consultant also explained that the very basic requirements to sustain competitive employment at any exertional or skill level included: the ability to sustain focus and attention for at least 2 hours at a time throughout the workday; the ability to attend to work tasks and remain free from distraction or interruption from coworkers; the ability to attend to work and not require supervision or redirection to remain on task; the ability to follow short and simple instructions and recall work tasks without reminders; the ability to work without taking unscheduled breaks or leaving the workstation (except at designated break times); the ability to attend to work on a regular schedule, free from absences or tardiness (the maximum allowable tolerance by most employers would be one day per month, but many employers would not even allow that amount in the competitive labor market); and the ability to consistently produce a certain, minimal amount of work while on the job. It was likely (“more likely than not”) that the Veteran would be unable to satisfy most, if not all, of these basic requirements due to the combination of the limitations from his service-connected back and right lower extremity disabilities. Specifically, he experienced severe pain and needed to take unscheduled breaks to alternate positions in an attempt to alleviate pain, he was precluded in his ability to sit, stand, or walk for prolonged periods due to back and lower extremity pain, and he took 3 to 4 unscheduled breaks (15 to 30 minutes per time) during each work shift when he was employed to alleviate pain. As a result of his concentration impairments and excessive time spent off task, it was likely that the Veteran would have been unable to meet the pace and productivity requirements of even unskilled non-physical employment. This eliminated his ability to work in a competitive work environment. Although the Veteran graduated high school and had some college education, his service-connected disabilities and subsequent impaired concentration and excessive time spent off tasks negatively impacted his ability to learn new skills. Therefore, he did not possess any skills from previous education or work that would readily transfer to new jobs at even the non-physical level, and he would likely have difficulty learning new job tasks and skills. Overall, it was likely (“more likely than not”) that the Veteran had been unable to secure and follow any substantially gainful employment, to include unskilled non-physical employment, since at least July 2007 due to his service-connected back and right lower extremity disabilities. In sum, the Board finds that the Veteran completed high school and has some college education, that his employment experience consisted predominantly of physical employment as a mechanic, and that while he was employed he began to experience occupational impairment due to symptoms associated with his back and lower extremity neurological disabilities. He stopped working as a mechanic prior to the claim period due partly to his service-connected disabilities, and any subsequent employment that he attempted (to include any employment during the claim period) has been marginal (as verified by his SSA earnings). He has been awarded SSA disability benefits on the basis of back disability, he has not been gainfully employed at any point during the claim period, his medical records reflect significant impairments from his service-connected disabilities (including, but not limited to, pain, stiffness, limited motion, weakness, decreased sensation, impaired reflexes, and significant limitations with sitting, standing, lifting, walking, and other physical tasks associated with his service-connected back and lower extremity neurological disabilities) that would prevent him from performing any type of employment (physical or otherwise). Also, the physician who conducted the January 2008 VA back examination explained that the Veteran was “disabled from any gainful employment,” and the vocational consultant explained in the September 2020 report why the Veteran had been unable to secure and follow any substantially gainful occupation consistent with his education and occupational experience during the entire period since July 2007. The above discussion of the severity of the symptoms of the Veteran’s service-connected disabilities and his educational and occupational experience, to include the medical opinions, reflects that the preponderance of the evidence is in favor of a conclusion that he was unable to secure and follow substantially gainful employment as a result of his service-connected disabilities during the entire period from July 24, 2007 through July 13, 2012. Hence, entitlement to a TDIU during this period is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine, prior to March 15, 2013, is remanded. The parties to the Joint Motion explained that the Board did not consider whether any separate ratings were appropriate for certain conditions related to the Veteran’s service-connected back disability, to include bladder impairment. In this regard, when rating a spinal disability, any associated objective neurological abnormalities, including, but not limited to, bladder impairment, are to be separately rated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Veteran’s medical records reflect that he has reported some urinary symptoms during the claim period, but it is unclear whether they are related to his service-connected back disability or other diagnosed disability(ies), to include benign prostatic hypertrophy. Therefore, a remand is necessary to afford the Veteran an appropriate examination to determine the nature and severity of any urinary symptoms, and to obtain a medical opinion as to whether any such symptoms are associated with his service-connected back disability. Moreover, the Veteran’s representative contended in an October 2020 statement that the reports of the VA back examinations conducted during the claim period prior to March 15, 2013 do not contain adequate information as to extent of any additional functional impairment of the spine during flare ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Therefore, his representative suggested that a remand was necessary to obtain an appropriate retrospective medical opinion. See Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (discussing situations when it may be necessary to obtain a “retrospective” medical opinion to determine the date of onset or severity of a condition in years past). The Board acknowledges that the Veteran reported increased back symptoms during various periods and with certain activities prior to March 15, 2013, but that no VA examiner provided information as to the extent of any additional functional impairment of the spine during flare ups. Therefore, the Board agrees with the Veteran’s representative and in light of the absence of adequate information concerning functional impairment of the spine during the relevant period, and in light of the fact that a remand is also necessary to obtain information as to the nature of any urinary symptoms and their potential relationship to the Veteran’s service-connected back disability, a remand is also necessary to obtain an appropriate medical opinion as to the extent of any additional functional loss of the spine during the claim period prior to March 15, 2013. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Houston Vista electronic records system (dated to November 2012) and the Tampa Vista electronic records system (dated to May 2018). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records from the Houston VA Medical Center for the period since November 2012; and all VA treatment records for the Veteran dated from May 2018 to the present including records from the Tampa, Florida VASA Medical Center. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and severity of any current bladder disability and to obtain a medical opinion as to whether any such disability is associated with his service-connected back disability. The clinician must provide an opinion as to whether any bladder symptom experienced by the Veteran since approximately July 2006 at least as likely as not is a neurological manifestation of his service-connected degenerative joint disease of the lumbar spine. If any bladder symptom experienced since approximately July 2006 is a neurological manifestation of the Veteran’s service-connected degenerative joint disease of the lumbar spine, the clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In this regard, based on any examination findings and the Veteran’s documented medical history and lay assertions, the clinician should identify the nature and severity of any such bladder symptoms during the period since July 2006 and, if possible, indicate (a) whether at any point(s) during this period the symptoms increased in severity; (b) the approximate date(s) of any such change(s); and (c) the severity of the symptoms on each date. The clinician must provide reasons for each opinion given. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding the severity of the Veteran’s service-connected degenerative joint disease of the lumbar spine during the period from July 2006 through March 2013. (Continued on the next page)   Based on any examination findings and the Veteran’s documented medical history and lay assertions, the clinician should provide an estimate, if at all possible, of the additional impairment of the thoracolumbar spine due to flare-ups and following repeated use over time during the period from July 2006 through March 2013. If it is not possible to provide a specific measurement without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The clinician may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. The clinician must provide reasons for each opinion given. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.