Citation Nr: 21022005 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-20 885A DATE: April 14, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to January 29, 2010, for post-operative residuals of a low back disability is denied. Entitlement to a rating in excess of 10 percent from January 29, 2010 to February 28, 2014, for post-operative residuals of a low back disability is denied. Entitlement to a rating in excess of 20 percent from February 28, 2014 for post-operative residuals of a low back disability is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity (LLE) radiculopathy prior to February 28, 2014 is denied. Entitlement to a rating in excess of 40 percent for left lower extremity (LLE) radiculopathy from February 28, 2014 is denied. Entitlement to a rating in excess of 10 percent for a right knee disability is denied. Entitlement to a rating in excess of 10 percent for a right ankle disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 28, 2014 is granted. FINDINGS OF FACT 1. Prior to January 29, 2010, the Veteran’s lumbar spine disability manifested with painful motion, limitation of motion, radicular sensory and motor issues of the bilateral lower extremities. 2. From January 29, 2010 to February 28, 2014, the Veteran’s lumbar spine disability manifested with painful motion and limitation of motion. 3. From February 28, 2014, the Veteran’s lumbar spine disability manifested with painful and limited range of motion as well as muscle spasms severe enough to result in abnormal gait. 4. Prior to February 28, 2014, the Veteran’s LLE radiculopathy manifested with moderate incomplete paralysis of the sciatic nerve. 5. From February 28, 2014, the Veteran’s LLE radiculopathy manifested with moderately severe incomplete paralysis of the sciatic nerve. 6. During the period on appeal, the Veteran’s right knee disability manifested with limited range of motion and objective evidence of pain. 7. During the period on appeal, the Veteran’s right ankle disability manifested with limited dorsiflexion and objective evidence of pain on motion. 8. Prior to February 28, 2014, the Veteran’s service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to January 29, 2010, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5293 (2002). 2. From January 29, 2010 to February 28, 2014, the criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243 (2019). 3. From February 28, 2014, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243 (2019). 4. Prior to February 28, 2014, the criteria for an initial rating in excess of 20 percent LLE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520 (2019). 5. The criteria for a disability rating in excess of 40 percent for LLE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2019). 6. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003 (2019). 7. The criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2019). 8. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.10, 4.15, 4.16 (a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Army from March 1989 to April 1993. This matter comes before the Board on appeal of February and June 2010 rating decisions. This case was previously before the Board in June 2020, where the issues on appeal were remanded for further evidentiary development. The Board notes that the Veteran has been assigned a 100 percent disability rating since February 28, 2014; thus, TDIU was moot after that date. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). However, the issue of TDIU prior to February 28, 2014 remains on appeal. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). As in the instant case, separate ratings for distinct periods of time, based on the facts may be for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2019). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 20 percent prior to January 29, 2010, for post-operative residuals of a low back disability Here, the Veteran contends that his lumbar spine disability warranted a rating in excess of 20 percent prior to January 29, 2010. Based on the evidence, the Board disagrees. At the outset, the Veteran’s lumbar spine disability was rated at 20 percent disabling under 38 C.F.R. § 4.71a, DC 5293. Initially, the Board notes that the regulations concerning spinal disabilities and injuries were revised, effective from September 26, 2003. 68 Fed. Reg. 51,454-58 (Aug. 27, 2003). Disabilities and injuries of the spine are now evaluated under 38 C.F.R. § 4.71a, DCs 5235 through 5243, with DC 5243 as the new code for intervertebral disc syndrome (IVDS). In this instance, the Veteran was granted service connection for a lumbar spine disability with a 20 percent evaluation effective May 1, 1993. Under the criteria in effect prior to September 26, 2003, Diagnostic Code 5293, which pertained to IVDS, allowed for a 10 percent rating for mild IVDS with recurring attacks; a 20 percent rating for moderate IVDS with recurring attacks; a 40 percent rating for severe IVDS with recurring attacks with intermittent relief; and a 60 percent rating for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to site of diseased disc and little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002). Under the revised DC 5293, in effect from September 23, 2002, IVDS may be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 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. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293 (2003). Note (1) defines an “incapacitating episode” as “a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.” “Chronic orthopedic and neurologic manifestations” were defined as “orthopedic and neurologic signs and symptoms resulting from [IVDS] that are present constantly, or nearly so.” Id. The September 23, 2002, amendments did not change the criteria for rating the spine impairment based on slight, moderate, and severe limitation of motion under Diagnostic Code 5293. Effective September 26, 2003, spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (DCs 5235-42) or under the Formula for Rating IVDS Based on Incapacitating Episodes (DC 5243), whichever results in the higher evaluation when all disabilities are combined. Under the current General Rating Formula, the regulations provide specific range of motion measurements in degrees that correspond to different disability ratings, as opposed to the prior regulations that contained subjective descriptions regarding range of motion measurements. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2019); cf. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Pursuant to the current General Rating Formula and with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned 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 assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50-percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100-percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71(a), DC 5235 – 5243 (2019). Note (1) of the General Rating Formula provides that VA should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Id. In addition to the General Rating Formula for Diseases and Injuries of the Spine, under the alternative Formula for Rating IVDS Based on Incapacitating Episodes, the criteria still require IVDS with incapacitating episodes to be manifested by bed rest prescribed by a physician, with differing lengths of bed rest warranting different disability ratings. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Specifically, a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that the terms “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. 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. All the medical evidence was to be evaluated to determine the appropriate rating that would compensate the Veteran for impairment in earning capacity, functional impairment, etc. Nevertheless, the revised regulations (in 2003) provide definitions of normal orthopedic movement. While these measures are not binding on the old criteria, they are useful as guidance in determining the severity of a spinal injury. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 340 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V. In an August 2008 VA examination, the Veteran reported that chronic low back pain with urinary urgency and some mild constipation. He added that his back pain radiated down his left leg, all the way to his foot and down his right leg to the knee level. The Veteran complained of numbness and tingling in his left foot. He reported flare-ups that consisted of an increase in pain and anxiety that occurred with activity. The Veteran also reported some erectile dysfunction. However, he denied any bowel or bladder control issues. He did not use an additional assistive device other than a cane or back brace. The Veteran reported that he was last employed in November 2007, working in the recreational vehicle industry. He stated that he would simply work through pain and the numbness in his legs. He reported two incapacitating episodes in the past year. He added that when his left leg gives out secondary to the numbness due to his back issues, he would fall toward the right. His two incapacitating episodes were due to that issue. On examination, the Veteran had full ROM with flexion to 90 degrees, extension to 30 degrees, and left/right lateral rotation and flexion to 30 degrees. The Veteran had increased pain with repeated activities but no loss of ROM or fatigue. There was no significant tenderness to palpation, no paraspinal tension. There was evidence of spinous process defects along the L3 through S5 levels. The Veteran had decreased pinprick sensation on the left L5 and right S1 dermatomal distributions. Otherwise, sensation intact. The Veteran had 5/5 strength throughout, although the Veteran had decreased great toe dorsiflexion on the left. His reflexes were intact. Straight leg raise (SLR) test was negative on the right, positive on the left. The diagnosis was history of tethered cord syndrome, status post laminectomies with residual neuropathy and radiculopathy in the legs and bladder symptoms. Based on the foregoing, prior to January 29, 2010, the Veteran’s lumbar spine disability did not warrant a rating in excess of 20 percent disabling. The Veteran had full ROM of his lumbar spine and reported two incapacitating episodes in the past year. In addition to the chronic back pain, there was evidence of radicular symptoms as well as urinary issues. However, there was little evidence of severe recurring attacks with intermittent relief. Additionally, there was no evidence of persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to his diseased discs. The Board notes that there was evidence of radicular symptoms but not to the degree of pain and demonstrable muscle spasm or absent ankle jerk or other neurological findings of his diseased discs. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). 2. Entitlement to a rating in excess of 10 percent from January 29, 2010 to February 28, 2014, for post-operative residuals of a low back disability Here, the Veteran contends that his lumbar spine disability warranted a rating in excess of 10 percent disabling prior to February 28, 2014. Based on a preponderance of the evidence, the Board disagrees. At the outset, the Veteran was assigned a 10 percent rating for the period under DC 5243 for intervertebral disc syndrome (IVDS). In the April 2010 VA examination, the Veteran complained of chronic pain which he treated with physical therapy and epidurals. The Veteran continued to have chronic lower back pain that radiated to the left lower extremity with numbness of the left foot. He reported flare-ups of his lower back pain when he bent over, lifted, or sat for prolonged time. On examination, the Veteran had pain on palpation of his L4-L5. He had painful and limited ROM in the lumbosacral spine. Specifically, he had forward flexion to 65 degrees, extension to 10 degrees, left/right lateral bending to 30 degrees, and left/right lateral rotation to 30 degrees. Muscle strength was 5/5. There was no evidence of spasm of paravertebral muscles. After repetitive motion in the lumbosacral spine, the Veteran had increased pain, easy fatigability, lack of endurance, and decreased ROM with flexion to 65 and extension to 5 degrees. There was no change of ROM in lateral bending and rotation bilaterally. The examiner indicated that the Veteran’s lower back pain radiated to the LLE. Neurological examination revealed deep tendon reflexes were 3+ and equal bilaterally. SLR test was negative from sitting position, but it was 1+ in the left from lying position for flexion to 65 degrees. Babinski test was negative bilaterally. Pinprick test revealed numbness of skin left upper forefoot with toes. There was no functional impairment of the joint of the LLE. The Veteran was able to tiptoe and stay on his heels with both feet. Additionally, his gait was with limping on the left leg because of radiculitis. X-rays revealed laminectomy changes L3-L5, degenerative disc L4-L5, L5-S1. The impression was degenerative changes of lower lumbar spine, laminectomy changes L3-L5. Additionally, VA treatment records showed that the Veteran continued to suffer from chronic low back pain with complaints of radiculitis. Based on the foregoing, the Veteran’s lumbar spine disability most closely approximated a 10 percent rating. The Veteran’s lumbar spine manifested with forward flexion to 65 degrees and combined range of motion of 165 degrees. However, there was no evidence of muscle spasm or guarding severe enough to result in abnormal gait or forward flexion between 30 and 60 degrees. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). 3. Entitlement to a rating in excess of 20 percent from February 28, 2014 for post-operative residuals of a low back disability Here, the Veteran contends that his lumbar spine disability warranted a rating in excess of 20 percent from February 28, 2014. Based on the evidence, the Board disagrees. At the outset, the Veteran’s lumbar spine disability was assigned a 20 percent disability rating for this period under DC 5242, degenerative arthritis. In the September 2014 VA examination, the Veteran reported chronic low back pain as a 5 out of 6, on a scale of 10. He took 8 Percocet for pain and reported aching and pain down the back of his left leg. He explained that he had not been able to work since 2009, when he was a full-time trucker. The Veteran did not report flare-ups of his lumbar spine condition. On examination, the Veteran had forward flexion to 45 degrees, with objective evidence of painful motion at 45 degrees. See November 2014 addendum. Extension to 25 degrees with objective evidence of pain at 20 degrees. The Veteran had right lateral flexion (RLF) to 20 degrees with objective evidence of pain at 20 degrees. Left lateral flexion (LLF) ended at 30 degrees or greater with objective evidence of pain at 30 degrees. Similarly, the Veteran had right lateral rotation (RLR) to 20 degrees and left lateral rotation (LLR) to 30 degrees, with objective evidence of pain at 20 degrees and 30 degrees, respectively. The Veteran was able to perform repetitive-use testing with at least three repetitions. The Veteran’s forward flexion ended at 45 degrees, extension to 20 degrees, RLF/LLF to 20 degrees, and RLR/LLR to 30 degrees. After repetitive-use the Veteran had additional loss of ROM. The contributing factors of the Veteran’s functional loss were less movement than normal, excess fatigability, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. There was evidence of muscle spasm of the thoracolumbar spine that resulted in abnormal gait or abnormal spinal contour. There was no evidence of muscle atrophy and the Veteran had normal strength and active movement against some resistance for his bilateral lower extremities. On reflex exam, the Veteran was hyperactive without clonus on his knees, but had normal deep tendon reflexes for his ankles. Sensory examination showed decreased sensation to light touch in the Veteran’s left upper thigh, thigh/knee, lower leg/ankle, and foot/toes. Likewise, the Veteran had decreased sensation to light touch for his right foot/toes. SLR test was negative on the right side but positive on the left. There was evidence of radicular pain or signs of radiculopathy. Specifically, the Veteran had moderate constant pain in his RLE, severe intermittent pain in his RLE, no paresthesias/dysesthesias, but severe numbness of his LLE. The examiner indicated that the sciatic nerve root was involved with mild severity of the RLE but severe on the LLE. There was no evidence of ankylosis of the spine. The Veteran had other neurologic abnormalities as he had been diagnosed with neurogenic bladder. Additionally, there was no evidence of IVDS of his spine. The Veteran reported the use of a cane constantly. There was a scar present on the Veteran’s lumbar spine from his prior surgery. Moreover, imaging studies revealed degenerative arthritis. The examiner remarked that the Veteran’s lumbar spine condition impacted his ability to work. The examiner stated that the Veteran ambulated with a cane, with altered gait. He could not sit for lengthy periods of time and shifted his weight frequently. Then, in the November 2015 VA examination, the Veteran’s diagnosis of lumbar radiculopathy and myelopathy with a lumbosacral strain was continued. The Veteran reported that his back still hurt but nothing had changed since his September 2014 VA examination. The Veteran did report that his back flared-up and when it did, he has to stop his activity and rest. He added that he had problems walking a long distance, sitting a long time in one position, standing a long time, going up and down stairs, and lifting/carrying heavy items. On examination, the Veteran had full ROM of his lumbar spine. Forward flexion to 90 degrees, extension to 30 degrees, RLF/LLF to 30 degrees, and RLR/LLR to 30 degrees. Pain was noted which caused functional loss on all ROMs. There was objective evidence of pain with weight bearing and evidence of localized tenderness or pain on palpation of the lumbosacral spine. After repetitive-use testing, the Veteran had flexion to 60 degrees, but all other ROMs remained the same. The examiner explained that he could not say without speculating whether the Veteran’s pain, weakness, fatigability, or incoordination could significantly limit functional ability following repetitive use over time. The examiner provided the same response as it related to flare-ups. There was evidence of muscle spasms that resulted in abnormal gait or abnormal spinal contour. However, localized tenderness and guarding of the lumbosacral spine did not result in abnormal gait or spinal contour. The Veteran had full strength in his bilateral lower extremities with no evidence of muscle atrophy. Reflex examination was normal bilaterally. However, sensory examination revealed decreased sensation to light touch in his left upper thigh, absent in his left thigh/knee, decreased in right lower leg/ankle but absent in his left lower leg/ankle, and decreased sensation in right foot/toes, but absent in his left foot/toes. SLR test was positive bilaterally. Additionally, there was evidence of radiculopathy. There was moderate constant pain of the LLE, severe intermittent pain of the bilateral LE, mild paresthesias/dysesthesias in the RLE, but moderate in the LLE. Moderate numbness of the RLE, but severe in the LLE. The examiner indicated that sciatic nerve root was involved and was moderate in severity bilaterally. There was no evidence of ankylosis, but the Veteran still had a neurogenic bladder. There was evidence of IVDS of thoracolumbar spine, but the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. The Veteran reported regular use of a brace and constant use a cane. The examiner remarked that the Veteran’s lumbar spine disability impacted his ability to work. The Veteran stated he had problems walking a long distance, sitting a long time in one position, standing a long time, going up and down stairs, and lifting and carrying heavy things. However, the examiner explained that the Veteran was still capable of substantial gainful sedentary employment based on his disabilities. VA treatment records following the November 2015 VA examination showed that the Veteran continued to suffer from chronic low back pain with radiculopathy. Finally, in the November 2020 VA examination, the Veteran reported that his back pain had progressively worsened over time. He did not report flare-ups. However, he reported functional loss described as being unable to bend over, lift, carry, or push without aggravating his lower back pain. On examination, the Veteran had forward flexion to 65 degrees, extension to 10 degrees, RLF/LLF to 25 degrees, and RLR/LLR to 25 degrees. The examiner stated that the Veteran’s decreased ROM caused architectural changes that resulted in functional loss while bending over, lifting, carrying, and walking. There was pain noted on examination that caused functional loss. There was evidence of pain with weight-bearing. Likewise, there was objective evidence of localized tenderness or pain on palpation of the joint. The examiner indicated that the Veteran’s lower back was tender to palpation with moderate severity. The Veteran was able to perform repetitive-use testing without additional loss of function or ROM. The examiner indicated that pain significantly limited functional ability with repeated use over time. The examiner estimated that the Veteran would have flexion to 65 degrees, extension to 10 degrees, RLF/LLF to 25 degrees, and RLR/LLR to 25 degrees. The Veteran denied flare-ups. The examiner indicated that the Veteran did not have guarding or muscle spasm of the lumbar spine. The Veteran had normal strength bilaterally and no evidence of muscle atrophy. On reflex testing, the Veteran had normal reflexes bilaterally. Sensory examination revealed decreased sensation to light touch for the Veteran’s left thigh/knee. All other lower extremities were normal. SLR test was positive bilaterally. There was evidence of radiculopathy; specifically, the Veteran had moderate numbness of the LLE. The examiner indicated that the Veteran’s RLE was not affected, but moderate severity of the LLE. There was no evidence of ankylosis of the spine. The examiner indicated that there were no other neurologic abnormalities. There was evidence of IVDS but without any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported regular use of a cane for his bilateral knee, ankle, and low back pain. The examiner remarked that the Veteran’s back impacted his ability to work as he could not bend over, lift, carry, or push without aggravating his lower back pain. Additionally, the examiner stated that there was objective evidence of pain when the spine is non-weight bearing. Based on the foregoing, the Veteran’s lumbar spine disability most closely approximated a 20 percent disability rating. The Veteran’s flexion ranged from 45-90 degrees, with muscle spasms severe enough to result in abnormal gait. However, a higher evaluation is not warranted as there was no evidence of forward flexion 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Additionally, although there was evidence of IVDS, the Veteran did not have any incapacitating episodes that required bed rest prescribed by a physician or treatment by a physician. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). 4. Entitlement to an initial rating in excess of 20 percent for left lower extremity (LLE) radiculopathy prior to February 28, 2014 Here, the Veteran contends that his LLE radiculopathy warranted a rating in excess of 20 percent prior to February 28, 2014. Based on the evidence, the Board disagrees. At the outset, the Veteran was assigned a 20 percent disability rating for LLE radiculopathy under DC 8520. DC 8520 provides ratings for complete or incomplete paralysis of the sciatic nerve. Under DC 8520 mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. 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, is rated 80 percent disabling. DC 8620 refers to neuritis of the sciatic nerve, while DC 8720 refers to neuralgia of the sciatic nerve. In the April 2010 VA examination, the Veteran had chronic lower back pain that radiated to the left lower extremity with numbness of the left foot. Neurological examination revealed deep tendon reflexes were 3+ and equal bilaterally. SLR test was negative from sitting position, but it was 1+ in the left from lying position for flexion to 65 degrees. Babinski test was negative bilaterally. Pinprick test revealed numbness of skin left upper forefoot with toes. There was no functional impairment of the joint of the LLE. The Veteran was able to tiptoe and stay on his heels with both feet. Additionally, his gait was with limping on the left leg because of radiculitis. X-rays revealed laminectomy changes L3-L5, degenerative disc L4-L5, L5-S1. The impression was degenerative changes of lower lumbar spine, laminectomy changes L3-L5. The examiner diagnosed the Veteran with radiculitis in the left of moderate severity. Subsequent to the April 2010 examination, VA treatment records showed that the Veteran had numbness and tingling to his left lower extremity, which had been ongoing for many years. Based on the foregoing, the Veteran’s LLE radiculopathy most closely approximated a 20 percent disability rating. The Veteran reported ongoing tingling/numbness to his LLE due to his lumbar spine condition. The Veteran did report that his left leg occasionally gave out which resulted in falls. Importantly, the examiner indicated that the Veteran’s LLE radiculitis was moderate in severity based on sensory testing. However, a higher rating is not warranted as there was little evidence that the Veteran’s LLE radiculopathy was moderately severe. Testing revealed that the Veteran’s LLE radiculitis was moderate, and his treatment records showed tingling and numbness but there was no indication that it was severe. Based on a totality of the evidence, the Veteran’s LLE radiculopathy was moderate in severity prior to February 28, 2014. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). 5. Entitlement to a rating in excess of 40 percent for left lower extremity (LLE) radiculopathy from February 28, 2014 Conversely, from February 28, 2014, the Veteran’s LLE radiculopathy manifested with moderately severe incomplete paralysis. However, a higher evaluation is not warranted. Specifically, in the September 2014 VA examination, the Veteran reported chronic low back pain as a 5 out of 6, on a scale of 10. He took 8 Percocet for pain and reported aching and pain down the back of his left leg. There was no evidence of muscle atrophy and the Veteran had normal strength and active movement against some resistance for his bilateral lower extremities. On reflex exam, the Veteran was hyperactive without clonus on his knees, but had normal deep tendon reflexes for his ankles. Sensory examination showed decreased sensation to light touch in the Veteran’s left upper thigh, thigh/knee, lower leg/ankle, and foot/toes. Likewise, the Veteran had decreased sensation to light touch for his right foot/toes. SLR test was negative on the right side but positive on the left. There was evidence of radicular pain or signs of radiculopathy. Specifically, the Veteran had moderate constant pain in his RLE, severe intermittent pain in his RLE, no paresthesias/dysesthesias, but severe numbness of his LLE. The examiner indicated that the sciatic nerve root was involved with mild severity of the RLE but severe of the LLE. Then, in the November 2015 VA examination, the Veteran’s diagnosis of lumbar radiculopathy and myelopathy with a lumbosacral strain was continued. The Veteran had full strength in his bilateral lower extremities with no evidence of muscle atrophy. Reflex examination was normal bilaterally. However, sensory examination revealed decreased sensation to light touch in his left upper thigh, absent in his left thigh/knee, decreased in right lower leg/ankle but absent in his left lower leg/ankle, and decreased sensation in right foot/toes, but absent in his left foot/toes. SLR test was positive bilaterally. Additionally, there was evidence of radiculopathy. There was moderate constant pain of the LLE, severe intermittent pain of the bilateral LE, mild paresthesias/dysesthesias in the RLE, but moderate in the LLE. Moderate numbness of the RLE, but severe in the LLE. The examiner indicated that sciatic nerve root was involved and was moderate in severity bilaterally. VA treatment records following the November 2015 VA examination showed that the Veteran continued to suffer from chronic low back pain with bilateral radiculopathy worse on the left. The Veteran reported numbness and tingling in his LLE. In one record, the Veteran reported pain down his left knee with his toes tingling and “on fire” with left leg numbness. In the November 2020 VA examination, the Veteran had normal strength bilaterally and no evidence of muscle atrophy. On reflex testing, the Veteran had normal reflexes bilaterally. Sensory examination revealed decreased sensation to light touch for the Veteran’s left thigh/knee. All other lower extremities were normal. SLR test was positive bilaterally. There was evidence of radiculopathy; specifically, the Veteran had moderate numbness of the LLE. The examiner indicated that the Veteran’s RLE was not affected, but moderate severity of the LLE. Based on the foregoing, the Veteran’s LLE radiculopathy most closely approximated a 40 percent disability rating. The Veteran’s LLE radiculopathy manifested with moderately severe incomplete paralysis of the sciatic nerve. Examiners remarked that the Veteran’s LLE radiculopathy ranged from severe to moderate with pain, numbness, and paresthesias. However, a higher evaluation is not warranted as there was no evidence that his LLE was severe with marked muscular atrophy. All examinations revealed that the Veteran had normal strength or active movement with resistance and no evidence of muscle atrophy in his lower extremities. As such, a higher evaluation is not warranted. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). 6. Entitlement to a rating in excess of 10 percent for a right knee disability Here, the Veteran contends that his right knee disability warranted a rating in excess of 10 percent for the period on appeal. Based on the evidence, the Board disagrees. At the outset, the Veteran’s right knee disability has been assigned a 10 percent rating for the period on appeal under DC 5003, degenerative arthritis. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 pct and 10 pct ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 pct and 10 pct ratings based on x-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. Normal range of motion for the knee is defined as flexion, 0 degrees to 140 degrees; and extension, 140 degrees to 0 degrees. 38 C.F.R. § 4.71, Plate II (2019). Additionally, VA General Counsel has held that a veteran who has arthritis resulting in limited or painful motion and instability of a knee may be rated separately under diagnostic codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98, (1998). VA General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004. Moreover, an evaluation of a knee disability under diagnostic codes 5260 or 5261 does not preclude a separate evaluation under diagnostic codes 5257, 5258, or 5259. DC 5256 provides for ankylosis of the knee. A 60 percent rating is warranted for extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more; 50 percent rating is warranted for flexion between 20 and 45 degrees; 40 percent rating for flexion between 10 and 20 degrees; and 30 percent for favorable angle in full extension, or in slight flexion between 0 and 10 degrees. DC 5257 provides for other impairments of the knee. A 30 percent rating is warranted for recurrent subluxation or instability: unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. One of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. A 20 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability: A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under DC 5258, a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. Diagnostic Codes 5260 and 5261 are used to rate limitation of flexion and extension of the knee. Under DC 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent rating; to 30 degrees warrants a 20 percent rating; and to 15 degrees warrants a 30 percent rating. Under DC 5261, limitation of extension of the knee to 5 degrees warrants a zero or non-compensable rating; to 10 degrees warrants a 10 percent rating; to 15 degrees warrants a 20 percent rating; to 20 degrees warrants a 30 percent rating, to 30 degrees warrants a 40 percent rating; and to 45 degrees warrants a 50 percent rating. DC 5262 provides for impairment of tibia and fibula. Relevant to this claim, medial tibial stress syndrome (MTSS), or shin splints: that require treatment for no less than 12 consecutive months, and unresponsive to surgery and either show orthotics or other conservative treatment, both lower extremities warrant a 30 percent rating. A 20 percent rating is warranted for requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 10 percent rating is warranted for requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 0 percent rating is warranted for treatment less than 12 consecutive months, one or both lower extremities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5256-5262). In the April 2010 VA examination, the right knee had normal configuration. There was no pain on palpation and during movement. The Veteran had full ROM in his right knee joint with flexion to 140 degrees, extension to 0. He had good stability of medial and lateral collateral ligament of the right knee joint and anterior and posterior cruciate ligament. McMurray and Lachman tests were negative. There was not any effusion in the right knee joint. After repetitive motion in the right knee joint, the Veteran had mild pain in the right knee starting from flexion 130 degrees, but no change of ROM, no complaints of easy fatigability. The Veteran’s gait was with limping only on the left leg because of his lower back condition. X-ray results failed to show evidence of a fracture or dislocation. There was mild narrowing of the medial compartment of the knee joint which might be due to early degenerative changes. The diagnosis was a sprain of the right knee with mild degenerative changes of the right knee joint. VA treatment record subsequent to the April 2010 VA examination, showed that the Veteran continued to have right knee pain with popping and instability. The Veteran required the use of knee brace to help with stability. In the November 2015 VA examination, the Veteran’s right knee strain was continued. The Veteran reported some locking of his knees when he walked. Also, he reported flare-ups in his knees which resulted in problems walking a long distance, standing a long time, and had to rest his knees. On examination, the Veteran had flexion to 140 degrees, extension to 0 degrees. There was pain noted in examination which caused functional loss. There was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or soft tissue. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional functional loss or ROM. The examiner could not say without speculating on whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. The examiner made the same comment regarding flare-ups. The examiner did state that the Veteran had disturbance of locomotion, interference with standing and problems with lifting and carrying. The Veteran had normal strength in his right knee with no reduction in muscle strength. Likewise, there was no evidence of muscle atrophy. Additionally, there was no evidence of ankylosis. There was no history of recurrent subluxation, lateral instability, or history of recurrent effusion. Joint stability testing was performed but there was no evidence of joint instability. There was evidence of shin splints bilaterally, but the condition did not affect the ROM of his knee or ankle and presented with no symptoms at that time. Additionally, there was no evidence of a meniscus condition. The Veteran regularly used a brace and constantly used a cane. MRI scan of the right knee showed no current evidence of knee effusion. There was no sign of bone destruction or fracture. Minimal degeneration osteophytosis was seen along the upper posterior patellar surface. The medial and lateral collateral as well as anterior and posterior cruciate ligaments were intact. Mild degenerative changes of lateral meniscus were present. Significant degenerative changes of the medial meniscus were noted with chronic appearing irregularity of the free meniscal edge and findings compatible with remote meniscal tear in this region. The quadriceps and patellar tendons were intact. In the November 2020 VA examination, the Veteran’s right knee sprain with degenerative arthritis was continued. The Veteran reported that his knee pain worsened over time. However, he did not report flare-ups of his knee. The Veteran did report that he could not bend down, lift, carry or run without aggravating his knee pain. On examination, the Veteran had flexion to 120 degrees, extension to 0 degrees. The examiner indicated that the Veteran’s decreased ROM caused architectural changes that resulted in functional loss while bending down, lifting, carrying, and walking. The Veteran exhibited pain on both flexion and extension, which caused functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint. There was no evidence of pain with weight-bearing or crepitus. The Veteran was able to perform repetitive use testing without additional functional loss or ROM. The examiner indicated that pain caused functional loss in the Veteran’s right knee and estimated flexion to 120 degrees and extension to 0. As noted above, the Veteran denied flare-ups of his right knee disability. The Veteran had normal muscle strength with no evidence of reduction in muscle strength or muscle atrophy. There was no evidence of ankylosis, history of recurrent subluxation, or lateral instability. Additionally, there was no history of recurrent effusion. Joint stability testing was performed but there was no evidence of joint instability. Anterior, posterior, medial, and lateral instability tests were normal. The examiner indicated that the Veteran did not have shin splints, stress fracture, chronic exertional compartment syndrome, or traumatic genu recurvatum or even leg length discrepancy. Moreover, there was no evidence of a meniscus condition. There were no other pertinent findings, complications, conditions, signs, symptoms, or scars. The Veteran reported the regular use of a cane and brace. The examiner remarked that the Veteran’s condition impacted his ability to work as he could not lift, carry, run, or bend down without aggravating his knee pain. There was objective evidence of pain on passive ROM testing. Additionally, there was objective evidence of pain when the joint is used in non-weight bearing. Based on the foregoing, the Board finds that the Veteran’s right knee disability did not warrant a rating in excess of 10 percent disabling. The Veteran’s knee condition manifested with limited ROM and pain on motion. However, a higher evaluation is not warranted as there was no evidence of flexion limited to 45 degrees, extension limited to 15 degrees, a tibia or fibula impairment that affected his knee, or any issues with instability or a meniscus condition. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). 7. Entitlement to a rating in excess of 10 percent for a right ankle disability Here, the Veteran contends that his right ankle disability warranted a rating in excess of 10 percent for period on appeal. Based on the evidence, the Board disagrees. At the outset, the Veteran’s right ankle was assigned a 10 percent rating for the period on appeal under DC 5271. Under DC 5271: (a) a 10 percent rating is warranted for moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) limited motion of the ankle; and (b) a 20 percent rating is warranted for marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) limited motion of the ankle. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5271). Separate compensable ratings may also be awarded if the ankle is ankylosed, has malunion of the os calcis or astragalus, or has had an astragalectomy. 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274. A higher rating may also be awarded under DC 5284 (other foot injuries): (a) a 10 percent rating is warranted for moderate foot injuries; (b) a 20 percent rating is warranted for moderately severe foot injuries; (c) a 30 percent rating is warranted for severe foot injuries; and (d) a 40 percent rating is warranted for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. If the evidence does not indicate any of the above findings, then the minimum compensable rating (10 percent) is still available if there is painful motion of the joint. 38 C.F.R. § 4.59. In the April 2010 VA examination, the Veteran’s right ankle was with normal configuration. There was not any pain on palpation or during movement. The Veteran had full ROM in his right ankle joint. Dorsiflexion to 20 degrees, plantar flexion to 40 degrees, inversion to 30 degrees and eversion to 20 degrees. After repetitive motion in the right ankle, the Veteran did not complain of any pain or easy fatigability, no change of normal ROM, not any limping on the right leg. X-ray of the right ankle did not show any evidence of fracture or dislocation. Ankle joint space appeared normal. The examiner reported that the Veteran’s condition of right knee and right ankle did not cause any impairment of his daily activity. His ambulation is with limping only on the left leg because of lower back pain and radiculitis in the left. The diagnosis was a right ankle sprain. VA treatment record subsequent to the April 2010 VA examination, showed that the Veteran continued to have right ankle pain with some instability. The Veteran required the use of ankle brace to help with stability. In the November 2015 VA examination, the Veteran’s right ankle sprain was continued. It was a deltoid ligament sprain shown to be chronic/recurrent. Since the last examination, the Veteran stated he had pain in his right ankle. He denied further injury or trauma to his ankle. There was no history of surgery to right ankle. He did report flare-ups of the right ankle. He explained that he had problems walking a long distance due to pain and hobbled around. On examination, the Veteran had dorsiflexion to 20 degrees, plantar flexion to 45 degrees, with pain noted on examination and caused functional loss. There was evidence of pain with weight-bearing but no evidence of localized tenderness or pain on palpation. Likewise, there was no evidence of crepitus. The Veteran was able to perform repetitive-use testing without additional loss of function or ROM. The examiner could not say without speculating on whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. The examiner made the same comment regarding flare-ups. The Veteran’s right ankle caused disturbance of locomotion and interference with standing. The Veteran had normal strength in his right ankle with no reduction in muscle strength or muscle atrophy. There was no evidence of ankylosis. The examiner indicated that ankle instability or dislocation was suspected but anterior drawer test and talar tilt test was negative. There was evidence of bilateral shin splints, but the condition did not affect the ROM of his ankle or knee. There were no symptoms of his shin splints. The Veteran used a brace regularly and a case constantly due to his knee and back condition. Imaging showed that the Veteran had mild degenerative changes in his ankle joint. Finally, in the November 2020 VA examination, the Veteran presented with right ankle pain. He reported that his pain is a constant dull ache with shooting pains with weight bearing that progressively worsened over time. However, he was not receiving any treatment for his right ankle. Additionally, the Veteran did not report flare-ups. He reported functional loss or functional impairment as being unable to walk, carry, lift, or run without aggravating knee pain. On examination, the Veteran had dorsiflexion to 10 degrees, plantar flexion to 45 degrees. The examiner stated that the Veteran’s decreased ROM caused architectural changes that resulted in functional loss while running, lifting, carrying, and walking. There was pain noted on examination and caused functional loss. Dorsiflexion and plantar flexion exhibited pain. There was no evidence of pain with weight bearing or crepitus. The Veteran was able to perform repetitive-use testing without additional loss of function or ROM. The examiner reported pain limited the Veteran’s function over time and estimated that his dorsiflexion was to 10 degrees and plantar flexion to 45 degrees. As explained above, the Veteran denied flare-ups. Additionally, there were no additional factors contributing to his disability. The Veteran had normal strength in his right ankle with no evidence of reduction in muscle strength or muscle atrophy. Likewise, there was no evidence of ankylosis. Additionally, there was no ankle instability or dislocation suspected. The examiner indicated that the Veteran did not have shin splints, malunion of calcaneus, talectomy, achilles tendonitis, or stress fracture of the lower leg. The Veteran reported regular use of a cane to assist with locomotion. The examiner remarked that the Veteran’s ankle condition impacted his ability to work as he could not walk, lift, carry, or run without aggravating bilateral ankle pain. Based on the foregoing, the Board finds that the Veteran’s right ankle disability did not warrant a rating in excess of 10 percent disabling. The Veteran’s right ankle disability manifested with moderate limitation of motion and pain on motion. However, a higher evaluation is not warranted as there was no evidence of marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Moreover, there was no evidence of ankylosis, malunion of the os calcus or astragalus or astragalectomy. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). TDIU Claim A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2018). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran’s ability or inability to engage in substantial gainful activity, must be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2019); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “Substantially gainful” employment is employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the occupation in the community where the veteran resides. See Moore v. Derwinski, 1 Vet. App. 356, 358 (1991) (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16 (a); see also Moore, 1 Vet. App. at 358 (“The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment.”). In reaching a decision, it’s necessary that the record reflect some factor, which takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2019); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). 8. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 28, 2014 Here, the Veteran contends that he was entitled to TDIU due to his service-connected disabilities. Based on the evidence, the Board agrees. At the outset, the Veteran meets the schedular criteria for TDIU prior to February 28, 2014. He was service-connected for persistent depressive disorder rated at 70 percent disabling; LLE radiculopathy at 20 percent disabling; neurogenic bladder at 10 percent; right knee degenerative arthritis at 10 percent disabling; right ankle disability at 10 percent disabling; tinnitus at 10 percent disabling; right elbow strain at 10 percent disabling; lumbar spine disability at 20 percent, then 10 percent disabling; and noncompensable rating for surgical scar. For a combined rating of 90 percent disabling. Therefore, the Board must determine whether the Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. In this instance, prior to February 28, 2014, the Veteran reported that he was a full-time truck driver but had to stop because he was on medications for his lumbar spine disability. Specifically, in a January 2010 treatment record, the Veteran reported that he was unable to drive at that time because he was taking too much Vicodin for his low back pain and could not find a job since September 2009. Moreover, the Veteran had chronic low back pain with radiculitis, which impacted his ability to sit for long periods. The Veteran had a neurogenic bladder which caused him to have urgency and urinary issues. Furthermore, the Veteran had moderate major depression which caused occupational and social impairment with symptoms of depressed mood, anxiety, suspiciousness, panic attacks, near-continuous panic or depression, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work relationships, inability to establish and maintain effective relationships and suicidal ideation. Furthermore, VA treatment records showed that the Veteran had issues controlling his anger and had concentration issues. (Continued on the next page)   Based on the medical evidence, the Veteran’s service-connected disabilities impacted his ability to function physically and mentally. Moreover, as discussed above, the veteran’s ability or inability to engage in substantial gainful activity, must be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). In this instance, the Veteran was a full-time truck driver but was unable to continue because of his chronic low back pain which precluded him from sitting for long periods of time. Additionally, the Veteran’s use of medications did not allow him to continue driving trucks. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that based on the Veteran’s prior vocational experience, his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, 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.