Citation Nr: 21010413 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 04-04 167 DATE: February 24, 2021 ORDER The issue of entitlement to an evaluation in excess of 20 percent, for the period prior to March 14, 2020, and in excess of 40 percent thereafter for lumbosacral strain is denied. Entitlement to an initial evaluation of 10 percent for left lower extremity radiculopathy, for the entire period prior to March 14, 2020, and 20 percent thereafter, is granted. Entitlement to an initial evaluation of 10 percent for right lower extremity radiculopathy, for the entire period prior to March 14, 2020, and 20 percent thereafter, is granted. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU), for the period beginning March 14, 2020, is granted. REMANDED The issue of entitlement to a TDIU, for the period prior to March 14, 2020, is remanded. FINDINGS OF FACT 1. Prior to March 14, 2020, the Veteran’s back disability did not manifest more than moderate limitation of range of motion, forward flexion limited to 30 degrees or less, or any ankylosis. The Veteran’s back disability did not manifest severe disability; with listing of whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, or severe IVDS, with recurring attacks with intermittent relief. The Veteran’s back disability did not manifest incapacitating episodes having a duration of at least 4 weeks or more. 2. Beginning March 14, 2020, the Veteran’s back disability did not manifest any ankylosis, attacks of IVDS with little intermittent relief, or IVDS with incapacitating episodes totalling 6 or more weeks in the year. 3. During the entire period prior on appeal to March 14, 2020, the Veteran’s lower extremity radiculopathies manifested mild symptoms. 4. Beginning March 14, 2020, the Veteran’s lower extremities radiculopathies manifested moderate symptoms. 5. Effective March 14, 2020, the Veteran’s service-connected disabilities meet the schedular criteria for award of TDIU and the Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent, for the period prior to March 14, 2020, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2002, 2003). 2. The criteria for a disability rating of 10 percent, for the entire period prior to March 14, 2020, and 20 percent thereafter, for in excess of 20 percent for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8720. 3. The criteria for a disability rating of 10 percent, for the entire period prior to March 14, 2020, and 20 percent thereafter, for in excess of 20 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8720. 4. The criteria for an award of TDIU, for the period beginning March 14, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.25, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to May 1977. The Veteran had a hearing before the Board in April 2006 and the transcript is of record. The case was most recently before the Board in December 2018 when it was remanded for additional development. The Board finds there has been substantial compliance with the remand directives for the claims decided herein.  Stegall v. West, 11 Vet. App. 268 (1998). Higher Rating Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. The issue of entitlement to an evaluation in excess of 20 percent, for the period prior to March 14, 2020, and in excess of 40 percent thereafter for lumbosacral strain. The Veteran contends that his back disability is more severe than currently evaluated. During the pendency of this Veteran’s appeal, the criteria for rating spine disabilities were amended multiple times. Effective September 23, 2002, VA revised the criteria for diagnosing and evaluating intervertebral disc syndrome. 67 Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26, 2003, VA revised the criteria for evaluating general diseases and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Effective February 7, 2021, VA revised the criteria for evaluating intervertebral disc syndrome. 85 Fed. Reg. 76,453 (November 30, 2020). VA General Counsel has held that where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 7-2003 (Nov. 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g), can be no earlier than the effective date of that change. The VA can apply only the earlier version of the regulation for the period prior to the effective date of the change. Under the former relevant criteria prior to September 26, 2003, limitation of motion of the lumbar spine that is slight warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). Moderate limitation of motion warrants a 20 percent rating. Severe limitation of motion warrants a 40 percent rating. Also, under the former criteria prior to September 26, 2003, sacro-iliac injury and weakness and lumbosacral strain are rated under the same criteria. 38 C.F.R. § 4.71a, Diagnostic Code 5294, 5295 (2003). When the disability was severe; with listing of whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, a 40 percent rating was warranted. When the disability showed muscle spasm on extreme forward bending, loss of lateral spine motion, unilaterally in a standing position, a 20 percent rating was warranted. With characteristic pain on motion, a 10 percent rating was warranted. Under the former criteria prior to September 23, 2002, IVDS that was moderate, with recurrent attacks was rated at 20 percent and mild disability was rated at 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). IVDS that was severe, with recurring attacks with intermittent relief warranted a 40 percent evaluation; and IVDS that was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, an absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief warranted a maximum evaluation of 60 percent. Effective September 23, 2002, IVDS was evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past twelve months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past twelve months is rated at 60 percent; and IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than six weeks during the past twelve months are rated at 40 percent. IVDS with incapacitating episodes have a total duration of at least two weeks but less than four weeks are rated at 20 percent. IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks in the past twelve months are rated at 10 percent. The schedule for rating disabilities of the spine was revised again, effective September 26, 2003. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) applies to Diagnostic Codes 5235 to 5243; Diagnostic Code 5243 states that IVDS may be evaluated under the General Rating Formula or the Formula for IVDS, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The schedule for rating disabilities of the spine was revised again, effective February 7, 2021. Diagnostic Code 5242 was noted to be for degenerative arthritis, degenerative disc disease other than IVDS (also, see either Diagnostic Code 5003 or 5010). Diagnostic Code 5243, regarding IVDS, was amended to indicate assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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). 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). The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent, for the period prior to March 14, 2020, and in excess of 40 percent, thereafter for the Veteran’s back disability. In October 2002 the Veteran was noted to receive treatment for many years including exercise, physical therapy, nonsteroidal anti-inflammatory agents, and TENS, and has been limited in his ability to perform physical work. The Veteran reported that his low back pain was daily. The pain was described as crampy and rated as 5 out of 10 in severity. He revealed that his low back was weak and that he had difficulty lifting and had a lack of endurance particularly which manifested as difficulty standing up for long periods of time, walking long distances and riding a bike. He also had significant stiffness which became worse as the day progressed. It made it difficult for him to bend and twist and he stated that during periods of more severe symptoms he sometimes had the inability to straighten his back up completely. He had flare-ups which occurred approximately once a week during which time he had pain of 9 out of 10 in severity. The flare-ups lasted from a day to several days. Lifting, twisting and other physical activities resulted in the flare-ups and he sometimes had difficulty straightening up completely. He did not use a crutch, brace or cane. He had never had surgery. Physical examination showed flexion to 80 degrees with low back pain. At full extent of motion, he was able to extend 30 degrees with low back pain at the full extent of motion. He was able to lateral bend 20 degrees to the right and left with pain greater on the right than on the left. He was able to axial rotate 20 degrees to both sides without pain. Pain was elicited at the full extent of motion. During periods of flare-ups his range of motion will be significantly reduced compared to what was evident on physical examination that day. During flare-ups he sometimes was unable to straighten up and walked around in a stooped fashion. On palpation of the lumbar spine, paraspinal muscle spasms were noted in the left paraspinal region. There was some point tenderness in the area. There were no postural abnormalities of fixed deformities. Imaging of the lumbar spine in April 2004 showed mild spondylosis, irregularity of the articular surfaces at the facet joints and irregularity of the pars interarticularis at the L5 where the possibility of a fracture cannot be excluded, and spot oblique views of the lumbosacral junction were recommended. An MRI of the lumbar spine in July 2004 showed L4-L5 disc desiccation and degeneration, no other significant findings in the unenhanced MRI of the lumbosacral spine. In October 2004 there were no radicular signs. The Veteran was afforded a VA examination in December 2004. The Veteran reported pain in the lumbosacral area and that the pain was abrupt in onset. The duration of the pain was usually 12 hours. The pain was burning, stabbing in nature and radiated to his left leg causing numbness. Pain had an intensity of 7 out of 10. During a flare-up the pain was 10 out of 10 in severity. The frequency of flare-ups was once a week and the duration was one to two hours. Flare-ups were precipitated by prolonged standing, sitting, and rainy days. Pain was alleviated by taking medications and bedrest. He walked without an assistive device and did not use a brace. He was able to walk for around a half hour before having pain. He claimed he was unsteady but denied falls. Range of motion of the thoracolumbar spine was 80 degrees of forward flexion, painful from 0 to 30 degrees. Extension of 0 degrees due to excruciating pain. Left and right lateral flexion from 0 to 10 degrees, painful from 0 to 10 degrees. Left and right lateral rotation from 0 to 20 degrees, painful from 0 to 10 degrees. There was exquisite tenderness upon palpation of the lumbosacral area at the paravertebral muscles. Physical examination showed spasms palpated at paravertebral muscles, as well as tenderness in same area. There was some guarding as well upon palpation of the lumbosacral area. There was a preserved spinal contour and a normal gait. There were no abnormalities regarding spinal contour such as scoliosis, reversable lordosis or abnormal kyphosis. There were no postural abnormalities or fixed deformities. He was diagnosed with chronic active lumbosacral strain, myositis. An April 2007 MRI showed discal degeneration of the lumbar inter-vertebral discs, disc prolapse (bulging) of the inter-vertebral disc in L3-L4, and central discal protrusion of 3.2 mm at the level of L4-L5, which slightly comprises the dural sheath without radicular compression. In February 2009 the Veteran reported non-localized low back pain, more intense towards the right portion and over the right gluteal region. Pain radiated to both thighs, and on the left side towards the groin. Pain worsened with walking and standing. He was unable to perform any other physical activity but swimming with constant low back pain. Flare-ups were noted as constant and impede normal activities of daily living. The last episode was one month prior and lasted until recently. The Veteran used a cane occasionally. He required help in the shower due to an unstable sensation. Physical examination showed that there were no disturbances in the thoracic region. There was evidence of rigidity in all directions of examination, and the Veteran exhibited and overt contracture of paralumbar muscles. There was positive Lasegue sign at 30 degrees on the right side. Pain was not focal on lumbosacral region. Radiological findings showed evidence of degenerative spine disease. MRI showed central nucleus pulposus herniation on both levels L3-L4, L4-L5. The Veteran was diagnosed with chronic low back pain syndrome, degenerative spine disease, and central disc herniation L3-L4, L4-L5. In September 2010 physical examination showed limping gait, good position of the head, symmetry of the spine in appearance. Using a cane and soft lumbar brace. Pain at palpation over L3-L4 and L5-S1, and right sacro-iliac joint, pain at palpation over lumbar para-vertebral muscles. Range of motion was 0 to 80 degrees of forward flexion, 0 to 30 degrees of extension, 0 to 30 degrees of left and right lateral flexion and lateral rotation. After repetitive use the Veteran had pain and fatigue. The results of a May 2010 MRI were reported. The Veteran was diagnosed with lumbar intervertebral syndrome. The Veteran was afforded a back examination in April 2011. The Veteran reported that he swam and exercised daily. He took medication for his back. He used a Velcro back brace daily and a cane intermittently. A September 2002 x-ray showed mild degenerative arthritic changes L4-L5 and L5-S1. History of degenerative disc disease and spondylosis was noted. The Veteran had flare-ups that were severe and occurred every 2 to 4 months. Duration of the flare-ups was between 2 and 4 weeks. The flare-ups were precipitated by turning too fast, walking on uneven ground, and abrupt movements that are unplanned. During a low back flare the Veteran cannot drive or go to work, cannot shop, cannot swim, and cannot do exercises until the flare passes. There was no urinary incontinence, urgency, retention requiring catheterization, frequency, or nocturia. There was no fecal incontinence, obstipation, erectile dysfunction, falls, leg or foot weakness, or unsteadiness. The Veteran had numbness and paresthesia. He had symptoms of fatigue, decreased motion, stiffness, weakness, spasm, and spine pain. The pain was lumbosacral and constant. The pain was dull and occasionally sharp. The pain was moderate and constant and daily. The pain radiated from the low back into the buttocks, mostly on the left side and sometimes on the right. Physical examination showed the posture and head position to be normal. There was no gibbus, kyphosis, lumbar lordosis, reverse lordosis, list, scoliosis, or ankylosis. There was lumbar flattening. There was spasm, guarding, and pain with motion bilaterally. There was no atrophy, tenderness, or weakness. Range of motion was flexion of 0 to 60 degrees, with pain at 60 degrees. There was pain on active, passive, and repetitive use testing. Extension was 0 to 20 degrees with pain throughout. There was pain on active, passive, and repetitive use testing. Bilateral lateral flexion was 0 to 30 degrees with pain beginning at 15 degrees and ending at 30 degrees. There was pain on active, passive, and repetitive use testing. Bilateral lateral rotation was 0 to 25 degrees with pain beginning at 15 degrees and ending at 25 degrees. There was pain on active, passive, and repetitive use testing. The Veteran was afforded a back examination in September 2012. The Veteran reported flare-ups. During a flare-up the Veteran was not capable of going out of the home, walking, and driving. A cane was needed to move. During flare-ups the pain radiated from the gluteal area and reached the first toe. Range of motion testing showed flexion of 40 degrees with pain beginning at 35 degrees. There was extension to 15 degrees with pain at 15 degrees. He had 25 degrees of right lateral flexion with pain at 25 degrees. He had 15 degrees of left lateral flexion with pain at 10 degrees. He had 30 degrees or greater of right lateral rotation with pain at 30 degrees or greater. He had 25 degrees of left lateral rotation with pain at 25 degrees of left lateral rotation. After repetitive use testing the Veteran had 40 degrees of flexion, 15 degrees of extension, 20 degrees of right and left lateral flexion and 25 degrees of right and left lateral rotation. He did not have additional limitation of range of motion following repetitive use testing; however, he had functional loss and/or functional impairment. The Veteran had diffuse soft tissue tenderness over the lower back at levels L3-L4-L5. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. There was no atrophy. He had intervertebral disc syndrome with incapacitating episodes of at least 2 weeks but less than 4 weeks over the prior 12 months. The Veteran occasionally used a cane and lumbar belt. The Veteran was not capable of walking middle to long distances, climbing stairs, stay in a standing up or sitting position during several minutes. In April 2017 there was evidence of pain on passive range of motion. There was evidence of pain when the joint was used in non-weight bearing. The Veteran was afforded a VA examination in March 2018. The examination was conducted during a flare-up. The Veteran was diagnosed with lumbosacral strain and intervertebral disc syndrome. He reported chronic pain, difficulty moving and doing basic daily activities. He had flare-ups of the thoracolumbar spine that he reported caused him to be unable to move, stay in bed for at least 2 days. He described the pain as 9 out of 10. The Veteran reported that he cannot do movements or actions of everyday living, like tying his own shoes and he showers sitting down. The Veteran was unable to perform range of motion testing because he was in a flare-up. There was pain noted on examination at rest, non-movement. There was evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. It was in the lower back muscles and was described as severe. The Veteran had constant pain and was an impossibility to do most regular activities. There was constant muscle contracture, spasm. The was evidence of pain with weight bearing. He was unable to perform repetitive use testing. The Veteran was not examined immediately after repetitive use over time. Pain and weakness significantly limited functional ability with repeated use over a period of time. The examiner was not able to describe in terms of range of motion. The Veteran reported that after repeated use, the loss of range of motion is variable, depending on how strenuously the joint was used. At its worst, he cannot move it at all due to pain and weakness but there were other times where the range of motion loss was minimal. Pain and fatigue caused functional loss. The examiner was not able to describe in terms of range of motion. The examiner noted that pain and fatigue were observed and caused functional loss during flare-ups; however, range of motion testing was not possible due to these factors. The Veteran had muscle spasm and guarding that resulting in abnormal gait or abnormal spine contour. The etiology of the muscle spasm and guarding was intervertebral disc syndrome and chronic back pain. There was no ankylosis. The Veteran was diagnosed with intervertebral disc syndrome; however, there were no episodes that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. The Veteran did not use any assistive devices. The Veteran was afforded a VA examination in March 2020. The Veteran was diagnosed with lumbosacral strain and intervertebral disc syndrome. The Veteran reported excruciating lumbar pain, neck pain and tingling sensation in both feet. The Veteran reported flare-ups of exacerbation of symptoms at least once a week that required bed rest. Pain was 9 out of 10. He had functional loss identified as not being able to bend, carry heavy things and not being able to drive. Range of motion testing was 25 degrees of flexion, 25 degrees of extension, 25 degrees of right and left lateral flexion, and 20 degrees of right and left lateral rotation. Decreased range of motion made moving, exercising, or doing even basic life activities extremely hard. Pain was noted on all ranges of motion. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The pain was severe. The pain was constant, there was inflammation and contraction on muscles surrounding the spine and giving support. There was evidence of pain with weight bearing. The Veteran was able to perform observed repetitive use testing. There was no additional functional or range of motion loss after three repetitions. The Veteran was not examined immediately after repetitive use over time. The Veteran had pain, fatigue, weakness and lack of endurance that significantly limited functional ability with repeated use over time. The examination was not done during a flare-up. Pain, fatigue, and weakness significantly limited functional ability with flare up. The range of motion with repetitive use over time and flare-ups was described as 25 degrees of flexion, extension, and right and left lateral flexion. There was 20 degrees of right and left lateral rotation. There was muscle spasm resulting in abnormal gait or abnormal spine contour described as constant pain, posture, difficulty moving make muscle spasms frequent. There was no guarding. There was no ankylosis. The Veteran was diagnosed with intervertebral disc syndrome; however, there were no episodes that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. The Veteran occasionally used a cane. The examiner noted that there was objective evidence of pain when the back was used in non-weight bearing. Passive ranges of motion were the same as active. During the period prior to March 14, 2020, the Veteran’s back disability manifested pain and functional impairment. The Veteran was noted to have stiffness and difficulty bending during periods of more severe symptoms. The Veteran also reported needing assistance with showering or showering while sitting due to issues with stability. He also reported flare-ups. However, predominantly during the period prior to March 14, 2020, the Veteran’s back disability did not manifest symptoms more than moderate limitation of range of motion and the Veteran’s back disability did not manifest forward flexion limited to 30 degrees or less, or any ankylosis. In addition, prior to March 14, 2020, the Veteran did have periods of flare-ups, which increased the severity of his symptoms, and incapacitating episodes. Notably, upon examination in March 2018 the Veteran’s symptoms were noted to be severe. However, at that time the Veteran was in the midst of a flare-up and although the Veteran reported that he needed to stay in bed, the examiner found that the Veteran did not have periods of incapacitating episodes. In addition, as noted in the prior Board remand, the examiner could not test the Veteran’s range of motion and did not address the address the frequency or severity of the reported flare-ups. Considered as a whole, the preponderance of the evidence during the period prior to March 14, 2020, does not show that the Veteran’s back disability manifested severe disability; with listing of whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, or severe IVDS, with recurring attacks with intermittent relief. The Veteran’s back disability did not manifest incapacitating episodes having a duration of at least 4 weeks or more. Therefore, entitlement to an evaluation in excess of 20 percent for lumbar spine disability prior to March 14, 2020, is denied. During the period beginning March 14, 2020, the Veteran’s back disability did not manifest any ankylosis, attacks of IVDS with little intermittent relief, or IVDS with incapacitating episodes totalling 6 or more weeks in the year. Therefore, entitlement to an evaluation in excess of 40 percent for lumbar spine disability, for the period beginning March 14, 2020, is denied. 2. The issue of entitlement to an initial compensable evaluation for left lower extremity radiculopathy, prior to April 28, 2009, and in excess of 10 percent from that date. 3. The issue of entitlement to an initial compensable evaluation for right lower extremity radiculopathy, prior to April 28, 2009, and in excess of 10 percent from that date. The Veteran seeks a higher evaluation for his left and right lower extremity radiculopathies. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The maximum which may be assigned for neuralgia is moderate incomplete paralysis. See 38 C.F.R. § 4.124. The Board finds that during the entire period prior on appeal to March 14, 2020, the Veteran’s lower extremities radiculopathies manifested mild symptoms, and during the period thereafter manifest moderate symptoms. The Veteran underwent a neurological evaluation in August 2004. He reported lumbar pain that radiated to the left leg and foot. He complained of left toe numbness. Examination showed adequate mass and toe and strength of 5/5 at all extremities. He had decreased pinprick at left lower extremity and right upper extremity (no particular distribution), decreased vibration at right lower extremity (no particular distribution), intact soft touch, and proprioception. Rhomberg was negative. Deep tendon reflexes were 3 at the patellar and 2 Achillean, bilaterally. There were no corticospinal or corticobulbar pathological reflexes. The diagnostic impression included chronic lower back pain, chronic cervical pain, and paraspinal muscle spasm. In October 2002 the Veteran neurological examination revealed normal gait. He was able to heel and toe walk without difficulty. Reflexes were 2+ and symmetric. Sensory examination was grossly intact. The Veteran was afforded a VA examination in December 2004. Sensory examination did not show any deficit upon pinprick stimulation. Motor examination showed no atrophy in the lower extremities, a normal tone and a strength of 5 out of 5, proximally and distally. Reflexes by manual muscle testing revealed a 4 out of 5 strength in the left gastroesolus area and in left extensor hallucis longus area. In May 2006 the Veteran had partial hemiparesis of the left hemiplegia, being more evidence in the left leg and hip with radiation ot the left knee and foot. Estimation of the MRI was reported as there was a moderate attrition of the vertebras L4, L5, S1, with moderate compression of the nerve roots of the nerve endings associated with compressive radiculopathy. The diagnosis was partial hemiparesis of the left hemiplegia, compressive radiculopathy. In November 2006 a neurophysiology study was compatible with bilateral L5 radiculopathies, sub acute or chronic, mild to moderate, inactive, with little re-innervation. In September 2010 a neurological examination showed left dermatome L4 2, left dermatome L5 1, left dermatome S1 1, left Valleix’s points positive, left Lasegue’s sign positive at 45 degrees, left Wassermann positive, left gastrocnemius muscle strength 4, left Achilles tendon reflex of 1+, and right Achilles tendon reflex of 2+. On a back examination in April 2011 reflex and motor examinations were normal. The Veteran was afforded a back examination in September 2012. Deep tendon reflexes were hyperactive without clonus in the knees and ankles. Light touch was decreased in the right upper anterior thigh and bilateral foot/toes. Sensation to light touch was normal in the left upper anterior thigh and bilateral thigh/knee and lower leg/ankle. Straight leg raising test was negative bilaterally. There were radicular symptoms identified as mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity. The nerve impacted was the sciatic nerve on the left and the severity was identified as mild. The Veteran was afforded a VA examination in March 2018. Reflexes were normal throughout. Sensory examination was normal throughout. The Veteran was unable to perform the straight leg raising test. There were no signs or symptoms of radiculopathy. The Veteran was afforded a VA examination in March 2020. The Veteran reported excruciating lumbar pain, neck pain and tingling sensation in both feet. Muscle strength testing was 4 out of 5 throughout. There was not atrophy. Reflex examination was normal throughout. Sensory examination was decreased in the right and left upper anterior thigh and normal in other tested areas. Straight leg raising test was normal bilaterally. There were radicular symptoms. There was mild intermittent pain bilaterally and moderate numbness bilaterally. There was no constant pain or paresthesias and/or dysesthesias. The sciatic nerve roots were impacted and were described as moderate. The Veteran was afforded a VA examination in March 2020. The Veteran was diagnosed with right and left lower extremity radiculopathy. The Veteran had mild right and left lower extremity intermittent pain and moderate numbness. Muscle strength was 4 out of 5 for knee extension, ankle plantar flexion and ankle dorsiflexion. Reflex examination was normal throughout. Sensory examination was decreased for the upper anterior thigh bilaterally. There were no trophic changes. Gait was normal. There were no special tests for the median nerve. The examiner identified mild incomplete paralysis of the right and left sciatic nerve. The Veteran used a cane occasionally. The Veteran was unable to make simple movements or positions. The Veteran was unable to bend, squat, lift, carry, walk long distances or periods of time, that are required for any kind of work, including sedentary work. Based on the above, the Board finds that during the entire period prior on appeal to March 14, 2020, the Veteran’s lower extremities radiculopathies manifested mild symptoms. The disabilities manifested decreased vibration sensation and numbness in the toes in August 2004. Thereafter, the Veteran’s lower extremity radiculopathies manifested reduced reflexes and hyperactive reflexes, and some decreased sensation. The Board acknowledges that November 2006 the Veteran was noted to have mild to moderate radiculopathy. However, the symptoms identified during the period on appeal prior to March 14, 2020, are no more than mild in severity and a September 2012 examination found the sciatic nerve in the right extremity unaffected and the left to be mild in severity. Subsequently, in March 2018 the Veteran did not have signs or symptoms of radiculopathy. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis for the period prior to March 14, 2020, and an evaluation of 10 percent, and no higher, is granted for the entire period on appeal prior to March 14, 2020. Based on the above, the Board finds that for the period beginning March 14, 2020, the Veteran’s lower extremities radiculopathies manifested moderate symptoms. Upon examinations in March 2020 examiners found that the Veteran had pain, numbness, reduced muscle strength, decreased sensation and radicular symptoms. On one examination report the examiner found mild intermittent pain bilaterally and moderate numbness bilaterally. The examiner described the disability as impacting the sciatic nerve roots and to be moderate in severity. Another examination report found mild incomplete paralysis of the right and left sciatic nerves. Affording the Veteran the benefit of the doubt, the Veterans’ lower extremity radiculopathies were moderate in severity during the period beginning March 14, 2020. As such, an evaluation of 20 percent, and no higher, is granted for the period beginning March 14, 2020. 4. Entitlement to a TDIU, for the period beginning March 14, 2020. Based upon the above grant of a higher evaluation for lower extremity radiculopathies, effective March 14, 2020, the Veteran meets the schedular criteria for award of a TDIU. See 38 C.F.R. § 4.16 (a). He is service-connected for the back disability, lower extremity radiculopathies and hemorrhoids. At issue is whether he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Affording the Veteran the benefit of the doubt, the Board finds his service-connected disabilities render him unable to secure and follow substantially gainful employment. 38 C.F.R. § 4.16 (a). VA treatment records note the Veteran was unable to continue working as a mechanic due to his back disability. See VA Treatment, September 2003. He had been trying work as an insurance adjuster but that the employment history was one of short-lived jobs and revolving employments. See VA Treatment, September 2003. In August 2004, the Veteran was able to occasionally lift 50 pounds, frequently lift 25 pounds, stand and/or walk about 6 hours in an 8 hour day, sit for about 6 hours in an 8 hour day, and push and/or pull unlimited. Social Security Administration (SSA) records show the Veteran completed college and had work experience as an insurance adjuster. The Veteran was awarded SSA disability benefits, effective April 2002, due to disorders of the back. See SSA Disability Determination, June 2005. At the hearing before the undersigned the Veteran reported that he worked for an insurance company. He could not work a technical job because of the standing and pushing. Thereafter, he was mentally disabled from working due to his depression. The Veteran was afforded a VA examination in March 2020. The examiner noted that the Veteran was unable to make simple movements or positions. The Veteran was unable to bend, squat, lift, carry, walk long distances or periods of time, that are required for any kind of work, including sedentary work. Considering the Veteran’s work and education history, his service-connected disabilities and affording him the benefit of the doubt, the Veteran is unemployable due to his service-connected disabilities. Therefore, entitlement to TDIU is granted effective March 14, 2020. REASONS FOR REMAND Entitlement to a TDIU, for the period prior to March 14, 2020, is remanded. The Veteran does not meet the schedular criteria for the award of a TDIU for the period prior to March 14, 2020. 38 C.F.R. § 4.16 (a). However, the evidence indicates that the Veteran may be unemployable due to his service-connected disabilities, during the period prior to March 14, 2020. VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU based on 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, consideration of entitlement to a TDIU on an extraschedular basis, during the period prior to March 14, 2020, is remanded for referral to the Directory of Compensation Service for consideration. To date he has not submitted a VA Form 21-8940, Application for TDIU. On remand, he should be asked again to submit the completed form. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form, with all appropriate information. 2. After completion of the above, refer the claim to VA’s Director of C&P Service or Under Secretary for Benefits for consideration of entitlement to a TDIU in accordance with 38 C.F.R. § 4.16 (b) for the period prior to March 14, 2020. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.