Citation Nr: 21012156 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-02 465 DATE: March 3, 2021 ORDER An effective date of March 12, 2014, for the establishment of service connection for left lower extremity radiculopathy is granted. An effective date of March 12, 2014, for the establishment of service connection for right lower extremity radiculopathy is granted. Prior to June 28, 2018, a schedular rating in excess of 10 percent for a lumbar spine disability is denied. From June 28, 2018, a schedular rating of 20 percent, but no higher, for a lumbar spine disability is granted. A schedular rating in excess of 20 percent for left lower extremity radiculopathy is denied. A schedular rating in excess of 10 percent for right lower extremity radiculopathy is denied. A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) on an extraschedular basis is denied. FINDINGS OF FACT 1. On March 12, 2014, lumbar spine x-rays were consistent with the Veteran’s complaints of bilateral lower extremity radiculopathy. 2. Prior to June 28, 2018, even considering his complaints of pain and functional loss, forward flexion in the Veteran’s thoracolumbar spine functionally limited to 60 degrees or less or combined range of motion of the thoracolumbar spine limited to 120 degrees or less was not shown; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown; ankylosis of the thoracolumbar spine was not shown; and the Veteran was not prescribed bed rest to treat his lumbar spine disability 3. From June 28, 2018, the Veteran’s lumbar spine disability resulted in forward flexion of 60 degrees or less; but ankylosis of the thoracolumbar spine is not shown; and the Veteran is not prescribed bed rest to treat his lumbar spine disability 4. The Veteran’s left lower extremity radiculopathy is most appropriately characterized as moderate incomplete paralysis; moderately severe incomplete paralysis has not been shown. 5. The Veteran’s right lower extremity radiculopathy is most appropriately characterized as mild incomplete paralysis; moderate incomplete paralysis has not been shown. 6. The Veteran does not meet the schedular rating criteria for a TDIU, and his service-connected disabilities are not shown to preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 12, 2014, for the grant of service connection for left lower extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date of March 12, 2014, for the grant of service connection for right lower extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. Prior to June 28, 2018, the criteria for a schedular rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5243. 4. From June 28, 2018, the criteria for a schedular rating of 20 percent for a lumbar spine disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242-43. 5. The criteria for a schedular rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. The criteria for a schedular rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 7. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1985 to January 1988.   Effective Dates An October 2019 rating decision granted the Veteran service connection for left lower extremity radiculopathy and right lower extremity radiculopathy and assigned effective dates of September 11, 2019, the date his service connection claims were received by VA. In an August 2020 Board remand, the Board found that the RO did not consider the Veteran’s neurological manifestations prior to September 11, 2019, and remanded the claims for further development, to include whether the Veteran was entitled to an earlier effective date. The general rule for earlier effective dates for service connection provides that if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement will be either the day following separation or the date entitlement arose. 38 U.S.C. § 5110(b)(1). If a claim is not received within a year of separation, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101 (a). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A review of the record shows that the Veteran was granted service connection for a lumbar spine disability by a July 2011 rating decision. At the time, he did not have a diagnosis of bilateral lower extremity radiculopathy. In June 2012, the Veteran filed an increased rating claim for his lumbar spine disability. In October 2019, the Veteran was afforded a VA examination. After reviewing the claims file, interviewing the Veteran, and conducting an examination, the examiner reported that a March 12, 2014 lumbar spine x-ray showed objective medical evidence of bilateral lower extremity radiculopathy. The examiner reported that a nexus had been established. A later October 2020 VA examiner reported that the Veteran’s bilateral lower extremity had an onset of 2014. As such, the date entitlement arose for his bilateral lower extremity radiculopathy was March 12, 2014, after his increased rating claim for a lumbar spine disability. Accordingly, the Veteran’s claims for earlier effective dates for the grant of service connection for left lower extremity radiculopathy and right lower extremity radiculopathy are granted as of March 12, 2014, the date objective medical findings were consistent with left lower extremity radiculopathy and right lower extremity radiculopathy. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.   Lumbar Spine Disability The Veteran filed an increased rating claim for a lumbar spine disability. An October 2012 rating decision continued the assigned 10 percent rating. A June 2020 rating decision granted an increased rating of 20 percent effective October 9, 2019. He disagrees with the assigned ratings and asserts he is entitled to higher ratings. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has experienced any IVDS for his lumbar spine disability. While the June 2018 VA examiner indicated that the Veteran had IVDS, the examiner also indicated that the Veteran did not have any episodes of IVDS that required bedrest prescribed by a physician during the previous 12 months. The October 2012, October 2019, and October 2020 VA examiners indicated that the Veteran did not have IVDS. In addition, there is no evidence showing that the Veteran has been prescribed any bed rest to treat his lumbar spine disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; if there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or if there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. The Board notes that, effective February 7, 2021, the criteria for evaluating musculoskeletal disorders were amended. As relevant to this decision, the amended rating criteria limit the types of back disorder entitled to consideration under the alternative diagnostic criteria for intervertebral disc syndrome, but did not otherwise amend the substance of the IVDS alternative criteria. Specifically, the amended regulation specifies that only disc herniation with compression and/or irritation of the adjacent nerve root qualifies as IVDS; otherwise the back disorder is rated under DC 5242. Since the prior version of the diagnostic criteria, which are less restrictive in the types of back disorders that qualify for consideration of the IVDS criteria, are more favorable to the Veteran, those former criteria will be applied in this case. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran’s medical records show he treats for his lumbar spine disability; however, his medical records do not show findings consistent with a rating in excess of 10 percent prior to October 9, 2019, or in excess of 20 percent afterwards. In June 2012, March 2014, December 2014, February 2015, and May 2016, he denied having any bowel or bladder incontinence. In October 2012, the Veteran was afforded a VA examination. He reported having flare-ups resulting in stiffness that lasted one to three days twice per month. On examination, he demonstrated normal forward flexion to 90 degrees, normal extension to 30 degrees, normal left and right lateral flexion to 30 degrees, and normal left and right lateral rotation to 30 degrees, all without objective evidence of pain. The examiner indicated that repetitive use testing did not result in any additional limitation of motion or functional loss. The examiner indicated that the Veteran did not have localized tenderness or pain on palpation, guarding, or muscle spasms of the thoracolumbar spine. He retained normal 5/5 lower extremity strength with no muscle atrophy. The examiner indicated that the Veteran did not have any other neurological abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems. In June 2018, the Veteran was afforded a VA examination. He reported having back pain daily. He reported having flare-ups that resulted in limitations performing physical activity. On examination, he demonstrated forward flexion to 60 degrees. The examiner indicated that there was pain noted on examination that caused functional loss. The examiner indicated that there was no evidence of pain with weight bearing. The examiner indicated that there was no objective evidence of localized tenderness or pain on palpation. The examiner indicated that repetitive use testing did not result in any additional limitation of motion. The examiner indicated that pain significantly limited functional ability with repeated use over a period of time and during flare-ups, but the examiner was not able to describe the functional loss in terms of range of motion. The Veteran retained normal 5/5 strength with no muscle atrophy. The examiner indicated that the Veteran did not have any other neurological abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems. In October 2019, the Veteran was afforded a VA examination. He reported having increased back pain, increased stiffness, decreased range of motion, and radiating pain into both lower extremities. He reported having flare-ups every couple of months that resulted in increased back pain. He reported having functional loss that resulted in difficulty bending over, inability to exercise, or standing more than ten minutes. On examination, he demonstrated forward flexion to 40 degrees with pain that caused functional loss. The examiner indicated that there was pain noted on examination that caused functional loss resulting in limited bending. The examiner indicated that there was no evidence of pain with weight bearing or non-weight bearing. The examiner indicated that repetitive use testing did not result in additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limited functional ability with repeated use over a period of time. The examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time, but the examiner was unable to describe the limited functional ability in terms of range of motion. The examiner indicated that the Veteran did not have ankylosis. The Veteran retained reduced 4/5 lower extremity strength with no muscle atrophy. The examiner indicated that the Veteran did not have any other neurological abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems. In October 2020, the Veteran was afforded a VA examination. He reported that he had constant low back pain. He denied having flare-ups or functional loss. On examination, he demonstrated forward flexion to 90 degrees. The examiner indicated that there was pain noted on examination but that the pain did not cause functional loss. The examiner indicated that there was no evidence of pain with weight bearing or non-weight bearing. The examiner indicated that repetitive use testing did not result in additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The examiner indicated that the Veteran did not have ankylosis. The Veteran retained normal 5/5 strength with no muscle atrophy. The examiner indicated that the Veteran did not have any other neurological abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems. Regarding the Veteran’s lumbar spine disability prior to June 28, 2018, the Veteran demonstrated normal forward flexion to 90 degrees and combined range of motion limited to 240 degrees at the October 2012 VA examination, which is equivalent to a noncompensable rating. Medical records do not show he had flexion functionally limited to 60 degrees or less, had combined range of motion functionally limited to 120 degrees or less, had muscle spasm or guarding, had ankylosis of the spine, or had any other neurological abnormality such as bower or bladder incontinence. As such, from June 28, 2018, the Veteran did not meet the criteria for a rating in excess of 10 percent. At the June 28, 2018 VA examination, the Veteran demonstrated flexion limited to 60 degrees, and at the October 2019 VA examination, the Veteran demonstrated flexion limited to 40 degrees, equivalent to a 20 percent rating. Medical records do not show his flexion is functionally limited to 30 degrees or less, he has ankylosis of the spine, or he had any other neurological abnormality such as bower or bladder incontinence. As such, beginning June 28, 2018, the Veteran met the criteria for a 20 percent rating, but no higher, based on limitation of flexion. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 prior to May 8, 2018. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Indeed, when § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Here, while the Veteran had pain on flexion, his lumbar spine pain did not result in additional limitation of flexion. In addition, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id., at 43; see also 38 C.F.R. § 4.40. In this case, the October 2012 VA examiner reported that repetitive use testing did not result in any additional limitation of motion or functional loss. The June 2018 VA examiner indicated that pain caused functional loss, but the examiner was not able to describe the functional loss in terms of range of motion. The October 2019 VA examiner indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time, but the examiner was unable to describe the limited functional ability in terms of range of motion. Finally, the October 2020 VA examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. Furthermore, the Veteran’s rating is largely the result of the application of such functional limitations. The Veteran’s medical record does not demonstrate functional limitation from pain or other source that would effectively limit his forward flexion to 60 degrees or less prior to June 28, 2018, or limit his forward flexion to 30 degrees or less afterwards. While the Veteran has been shown to experience lumbar spine pain, the United States Court of Appeals for Veterans Claims has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran consistently retained lumbar spine range of motion in excess of a compensable rating prior to June 28, 2018, and in excess of a 40 percent rating afterwards. As such, there is no basis for a higher rating under Diagnostic Code 5237. To the extent that it is argued that the Veteran’s range of motion is painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Here, the Veteran is assigned the minimum compensable rating and is in receipt of a 10 percent rating under Diagnostic Code 5237, and a rating in excess of 10 percent based on pain alone is not warranted. Accordingly, the criteria for a schedular rating in excess of 10 percent prior to June 28, 2018, for the Veteran’s lumbar spine disability have not been met, and the claim is denied. The criteria for a schedular rating of 20 percent, but no higher, beginning June 28, 2018, for the Veteran’s lumbar spine have been met, and the claim is granted. Bilateral Lower Extremity Radiculopathy An October 2019 rating decision granted service connection for the Veteran’s bilateral lower extremity radiculopathy and assigned 10 percent ratings for each lower extremity effective September 11, 2019. A June 2020 rating decision granted an increased rating of 20 percent effective September 11, 2019, for the Veteran’s left lower extremity radiculopathy. As discussed above, the Board finds that the Veteran was entitled to effective dates of March 12, 2014, for the grant of service connection for the Veteran’s left lower extremity radiculopathy and right lower extremity radiculopathy. The Veteran’s bilateral lower extremity radiculopathy is rated under Diagnostic Code 8520, which evaluates paralysis of the sciatic nerve. Mild incomplete paralysis of the affected nerve is rated 10 percent disabling, moderate incomplete paralysis of the affected nerve is rated 20 percent disabling, moderately severe incomplete paralysis of the affected nerve is rated 40 percent disabling, severe incomplete paralysis of the affected nerve with marked muscular atrophy is rated 60 percent disabling, and complete paralysis of the affected nerve is rated 80 percent disabling. The words “mild,” “moderate,” “moderately severe,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The Veteran’s treatment records do not contain findings consistent with higher ratings. The Veteran’s medical records show that in March 2014, he reported back pain that radiated into his left hip. In December 2014, the Veteran reported that his back pain radiated into his right lower extremity. In October 2019, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner indicated that the Veteran had moderate left lower extremity radiculopathy and mild right lower extremity radiculopathy. The examiner reported that a March 12, 2014 lumbar spine x-ray showed findings consistent with the Veteran’s bilateral lower extremity radiculopathy. In October 2020, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that the Veteran’s bilateral lower extremity had an onset of 2014. The examiner indicated that the Veteran had mild left lower extremity and mild right lower extremity incomplete paralysis of the sciatic nerve. Applying the regulations to the facts in the case, the October 2019 VA examiner reported that a March 12, 2014 lumbar spine x-ray showed findings consistent with the Veteran’s bilateral lower extremity radiculopathy. The October 2019 VA examiner indicated that the Veteran had moderate left lower extremity radiculopathy and mild right lower extremity radiculopathy. The later October 2020 VA examiner found that the Veteran had mild bilateral lower extremity radiculopathy. However, the Board will not disturb the assigned 20 percent rating for the Veteran’s left lower extremity radiculopathy. Therefore, the criteria for a schedular rating in excess of 20 percent for the Veteran’s left lower extremity radiculopathy and a rating in excess of 10 percent for the Veteran’s right lower extremity radiculopathy have not been met. The Board has considered all other potentially applicable Diagnostic Codes but has found that no other Diagnostic Codes would result in more favorable findings. Accordingly, the criteria for a schedular rating in excess of 20 percent for left lower extremity radiculopathy and a schedular rating in excess of 10 percent for right lower extremity radiculopathy have not been met, and the claims are denied. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In December 2014, the Veteran reported that he had trouble working due to neck and back pain and stiffness. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In the August 2020 Board remand, the Board found that the issue of a TDIU had been raised by the record and remanded the claim for further development. The Veteran is service connected for a lumbar spine disability rated at 10 percent disabling prior to June 28, 2018, and 20 percent disabling afterwards, left lower extremity radiculopathy rated at 20 percent disabling, and right lower extremity radiculopathy rated at 10 percent disabling. The Veteran is also service connected for chronic costochondritis rated at a noncompensable rating. The Veteran’s service-connected disabilities result in a combined rating, at most, of 50 percent. As such, the Veteran does not meet the schedular rating criteria for a TDIU. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. In an August 2020 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), the Veteran reported that his lumbar spine disability and shoulder pain prevented him from securing or following any substantially gainful employment. He indicated that he became too disabled to work in March 2020. He reported that he did not leave his last job because of his disabilities. He reported that he worked driving a bus and that his pain would not allow him to be able to continue driving a bus. A review of the competent evidence of record, which includes the Veteran’s medical records, the lay statements of the Veteran, and the opinions of VA examiners, when taken in total, does not suggest unemployability as a result of his service-connected disabilities. In October 2011, the Social Security Administration (SSA) determined that the Veteran’s lumbar spine disorder, in part, did not prevent the Veteran from working. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, an October 2012 VA examiner indicated that the Veteran’s lumbar spine disability did not impact the Veteran’s ability to work. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, a June 2018 VA examiner indicated that the Veteran’s lumbar spine disability limited his ability to lift, bend or perform physical work. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, an October 2019 VA examiner indicated that the Veteran’s lumbar spine disability resulted in the Veteran being only able to drive five hours per day due to prolonged sitting. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, an October 2020 VA examiner indicated that the Veteran’s lumbar spine disability with bilateral lower extremity radiculopathy did not impact the Veteran’s ability to work. The examiner indicated that the Veteran’s service-connected disabilities resulted in no restrictions for job related activities. The Veteran has not identified or submitted any competent evidence demonstrating that his service-connected disabilities precludes him from securing and maintaining substantially gainful employment and entitled him to a TDIU. As such, the claims file does not show that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. While the Veteran may not be able to perform his past work driving a bus, the Board does not believe that the Veteran’s service-connected disabilities prevents him from obtaining or maintaining substantially gainful employment. Giving the Veteran every benefit and even considering the greatest work limitations, the Veteran could still perform a job that involved sitting with the ability to alternate sitting and standing at will, such as a store greeter, a surveillance system monitor, or a call-out operator. From the above, it is the Board’s determination that the Veteran is able to obtain or maintain substantially gainful employment. He has a history of sedentary employment, and the evidence shows his current limitations do not prevent him from sedentary employment at a gainful level. See Withers v. Wilkie. 30 Vet. App. 139 (2018). The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, 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. (Continued on the next page)   Accordingly, a TDIU on an extraschedular basis is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.