Citation Nr: 21023307 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-17 544 DATE: April 20, 2021 ORDER A disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine ("back disability") is denied for the initial rating period prior to August 16, 2018. A 20 percent rating for the back disability is granted from August 16, 2018. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to August 16, 2018, flexion of the lumbar spine was limited to no worse than 85 degrees, even with pain and after repetition, and with consideration that motion is limited at the point where pain sets in; combined range-of-motion of the lumbar spine was no worse than 220 degrees; the evidence did not demonstrate muscle spasms or guarding resulting in abnormal gait or spinal contour; ankylosis was absent; and the Veteran did not have any incapacitating episodes. 2. From August 16, 2018, flexion of the lumbar spine was limited to no worse than 60 degrees, even with pain and after repetition, and with consideration that motion is limited at the point where pain sets in; the evidence did not demonstrate muscle spasms or guarding resulting in abnormal gait or spinal contour; ankylosis was absent; and the Veteran did not have any incapacitating episodes. 3. Prior to January 17, 2020, the Veteran does not have a single service-connected disability ratable at 60 percent or more or two or more service-connected disabilities with at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 4. From January 17, 2020, the Veteran has a combined disability rating of 70 percent and, combining his service-connected lower extremity disabilities, has a single service-connected disability evaluated as at least 40 percent disabling. 5. The evidence does not indicate that the Veteran is rendered unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities at any time during the rating period on appeal. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for the back disability have not been met for any part of the initial rating period prior to August 16, 2018. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a 20 percent disability rating, but no higher, for the back disability have been met for the rating period from August 16, 2018. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DCs) 5235-5243. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from March 1972 to October 1992. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a June 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. In September 2019 and September 2020, the Board remanded these claims for further development. The development requested having been completed, the case is now appropriate for appellate review. In that regard, the Board observes that the Veteran submitted private treatment records that had been requested in the Board’s September 2020 remand directives subsequent to transfer of the case by the Board; this submission was acknowledged by the Veteran’s representative in a January 2021 brief, and the Board finds that a waiver of initial review of these records by the RO is not necessary prior to appellate review. 38 C.F.R. § 19.31, 19.37(b). Disability Ratings Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. 1. A disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine ("back disability") is denied for the initial rating period prior to August 16, 2018. 2. A 20 percent rating for the back disability is granted from August 16, 2018. The May 2013 rating decision on appeal granted service connection for a back disability and assigned an initial 10 percent disability rating, effective from April 11, 2012. The Veteran contends that he is entitled to a higher initial disability rating for his back disability, which has manifested symptoms including constant pain and limited motion and has required treatment with epidural steroid injections and radiofrequency ablation. In his October 2013 notice of disagreement, he requested a 40 percent disability rating. For the reasons discussed below, the Board finds that the weight of the evidence is against a rating in excess of 10 percent prior to August 16, 2018, but is at least in equipoise as to whether a 20 percent disability rating is warranted from August 16, 2018. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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 General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided 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 disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, 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 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Effective February 7, 2021, the Schedule of Ratings for the Musculoskeletal System was revised. Pertinent to this case, DC 5242 was modified from “degenerative arthritis of the spine” to “degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010).” In addition, DC 5243 (intervertebral disc syndrome) was revised to specify that that diagnostic code was to be assigned only when there was disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 was to be used for all other disc diagnoses. 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 5242, 5243). Reviewing the most relevant evidence of record, private treatment records show that the Veteran received multiple epidural steroid injections for his back pain from 2010 to 2012. In March 2012, he reported a two-week history of back pain. The clinician noted that his last injection was in September 2011. His current pain level was 8 out of 10 in severity. An MRI was ordered. The March 2012 MRI study showed no evidence of disc herniation, multilevel annular bulging of the disc with bilateral foraminal encroachment, borderline central canal stenosis at L4-L5, and a slight degree of facet joint arthropathy. Later in March 2012, the Veteran began treatment with a private physician, Dr. D.N. He reported pain in his back and legs bilaterally. He stated he could ride in a car for one hour and had no problems walking or standing. He recently received steroid injections from which he obtained 4 to 6 months of analgesia. He was scheduled to start physical therapy next week and was taking Vicodin. On examination, there was tenderness of the lumbar sacral junction. The doctor assessed chronic pain and lumbago and recommended lumbar steroid injections. At an April 2012 initial physical therapy evaluation, the Veteran’s lumbar extension was 20 percent of normal, and flexion was 75 percent of normal. The Veteran reported increase in pain with static standing approximately 30 minutes, with lifting any weight from any height, and with driving. The June 2012 physical therapy discharge note indicates that the Veteran reported that he had not had to lift heavy items at work, and that he was able to stand 1 to 1 1/2 hours prior to onset of back pain. He continued to wake at night due to pain. His lumbar extension was noted to have improved from 20 percent in April to 40 percent of normal in May; flexion remained at 75 percent of normal. A June 2012 private treatment record indicates that back range of motion was normal in all directions and there was no tenderness to palpation. An October 2012 private treatment note indicates that the Veteran’s back pain adequately controlled, allowing him to participate in normal activities of daily living. He reported that the pain in the lumbar spine increased about a month ago. He had injections 5 months ago and they were starting to wear off. On examination, back range of motion was normal in all directions. Posture was normal. There was tenderness over the entire lower back and the lumbosacral region diffusely. An epidural steroid injection was administered later that month. In January 2013, the Veteran received another injection, and it was noted that he was able to participate in normal activities of daily living. He received 50 percent relief from the last injection. The Veteran was afforded a VA back examination in April 2013. He stated that he had not been prescribed bed rest by a doctor or had periods of incapacitation due to the back disability in the last 12 months. He was independent in activities of daily living. The diagnosis was mild degenerative joint disease (DJD) of the lumbar spine. There were no objective findings of radiculopathy. The examiner noted mild functional limitations. An x-ray showed that the disc space heights were normal; minimal degenerative marginal bony spur formation was seen throughout the lumbar spine; no fracture or dislocation is seen. Impression was mild degenerative disease. The examiner reviewed the claims file, including the 2012 MRI study. Currently, the Veteran reported daily low back pain. He denied flare-ups. Flexion was to 85 degrees; extension was to 25 degrees; bilateral lateral flexion was to 25 degrees; and bilateral lateral rotation was to 30 or greater degrees; there was no objective evidence of painful motion in any direction. After 3 repetitions, range of motion remained the same. The examiner indicated that there was no functional loss or impairment of the thoracolumbar spine. There was tenderness to palpation of the lower back and right paralumbar area. Sensory examination was normal in the lower extremities. Straight leg raising was negative bilaterally. The examiner indicated that there was no radicular pain or any other signs or symptoms due to radiculopathy. The Veteran did not have IVDS. He did not use assistive devices. Arthritis was documented by imaging studies. The examiner opined that the back condition would not impact the Veteran’s ability to work. The Veteran began receiving radiofrequency ablation treatment for his back pain in April 2013. In September 2013, the Veteran reported that his back pain was much reduced when not working, and that he had some increase when working. He stated that his low back pain was off and on and that he continued to see Dr. N. In March 2016, the Veteran reported increased back pain for the last 2 weeks. He stated that his back pain had been well-controlled with annual epidural steroid injections, and that his last injection was 6 months prior. However, two weeks ago, he was working in his yard, lifting mulch bags, when he felt as though he strained his back. Since then, he had experienced tenderness in his low back. Pain was rated at 8 out of 10, worse in morning and with sitting. On examination, he had full range of motion, although he had pain with extension. The clinician assessed acute musculoskeletal exacerbation of chronic pain. In August 2018, the Veteran began treatment at a different private facility. He reported back pain for which he received epidural steroid injections and radiofrequency ablation treatment in 2015 with good relief. Current pain level was 8 out of 10. Pain was constant. Flexion was to 60 degrees with pain and extension to 10 degrees with pain. An x-ray was performed and showed grade I spondylolisthesis at L4-5, and retrolisthesis at L3-4. Discs were narrowed with diffuse spondylosis. An MRI was ordered. The August 2018 MRI of the lumbar spine showed minor disc bulges at several levels with no apparent spinal canal stenosis or neuroforaminal narrowing at any level. An epidural steroid injection was administered in October 2018. However, in December 2018, the Veteran reported that the injection provided no relief of symptoms. His current pain level was 8 or 9 out of 10, and the clinician noted that pain was significantly affecting his quality of life. Range of motion remained the same as recorded in August. The Veteran received another epidural steroid injection in January 2019 and reported in February 2019 that the injections provided 50 percent pain relief. Subsequent treatment notes from the private facility show continued treatment with epidural steroid injections and identical range of motion findings. In October 2020, the clinician noted “significant disability” due to the back pain. At the June 2019 Board hearing, the Veteran testified that he used a patch and alternated heat and ice for his back pain. He stated he was unable to do yard work, lift heavy things, or shovel. His doctors told him that surgery would have a 50 percent chance of providing relief, so he declined. He stated that epidural steroid injections provided relief for approximately 3 months. The Veteran stated that more than 6 weeks out of the year, he was unable to get out of bed due to back pain, but that he had not been prescribed bed rest by a physician. He was afforded another VA back examination in January 2020. The examiner diagnosed degenerative arthritis of the spine; intervertebral disc syndrome; and bilateral lumbar radiculopathy. The Veteran reported low back pain rated at 4 out of 10 with pain down the right leg. Treatment had included steroid injections, Vicodin, and baclofen. The injections used to help for a year, but now the improvements were partial and lasted 9 months. The Veteran reported flare-ups, stating that in the middle of the night, he would get out of bed and develop a burning pain in his back. Sometimes the pain worsened with light yardwork. In terms of functional loss, the Veteran was unable to bend over, lift anything over 5 pounds, and experienced pain with walking for more than 10 seconds. Forward flexion (0-90) was 0 to 80 degrees; extension (0-30) was 0 to 15 degrees; right lateral flexion (0-30) was 0 to 20 degrees; left lateral flexion (0-30) was 0 to 15 degrees; right lateral rotation (0-30) was 0 to 28 degrees; and left lateral rotation (0-30) was 0 to 25 degrees. Range of motion itself did not contribute to functional loss. No pain was noted on exam or to palpation. After 3 repetitions, there was no additional loss of function or range of motion. Pain, weakness, fatigability, and incoordination would not significantly limit functional ability with repeated use over a period of time or during a flare-up; the examiner stated that no further loss of range of motion would be expected. The Veteran had mild muscle spasm in the right lumbar paravertebrals that did not result in abnormal gait or abnormal spinal contour. Sensation was decreased in the lower extremities, and there was moderate intermittent pain in the right lower extremity. The examiner stated that the bilateral femoral and sciatic nerves were involved, and that the Veteran had moderate right lower extremity radiculopathy and mild left lower extremity radiculopathy. There was no ankylosis. The Veteran had IVDS, but no bed rest prescribed by a physician in the past 12 months. The Veteran did not use assistive devices. Arthritis was documented by imaging. In terms of occupational impact, the low back pain and radiculopathy made worse by light yard work or walking would make these activities difficult as part of a job. Pain in and of itself caused difficulty in focusing on job related tasks. Based upon these findings and the lay evidence of record, the Board finds that the weight of the evidence is against an initial disability rating in excess of 10 percent for the rating period prior to August 16, 2018. As noted above, in order to be eligible for the next higher 20 percent disability rating, the evidence must demonstrate 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; or 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, Diagnostic Codes 5235-5243. Here, prior to August 16, 2018, flexion of the lumbar spine was limited to no worse than 85 degrees, even with pain and after repetition, and with consideration that motion is limited at the point where pain sets in. Combined range-of-motion of the lumbar spine was no worse than 220 degrees. Moreover, prior to August 16, 2018, the evidence does not demonstrate any muscle spasms or guarding resulting in abnormal gait or spinal contour. Finally, the Veteran did not have any incapacitating episodes. Therefore, the 10 percent disability rating assigned prior to August 16, 2018 adequately compensates the Veteran for his pain and functional limitations. However, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether a higher 20 percent disability rating is warranted from August 16, 2018. Namely, the evidence demonstrates a worsening of his back symptoms as of that date. As noted above, on August 16, 2018, flexion was limited to 60 degrees with pain and extension to 10 degrees with pain. Range of motion was identical in December 2018 and October 2020, and the clinician noted that the back condition significantly affected the Veteran’s qualify of life. Thus, it appears that the severity of the Veteran’s symptoms, as observed in August 2018, has been consistent since then. The Board acknowledges that the range of motion recorded at the January 2020 VA examination (flexion to 80 degrees and combined range of motion at 183 degrees) does not meet the criteria for a 20 percent disability rating; however, given the subsequent range of motion measurements recorded in the private treatment records in October 2020, and resolving reasonable doubt in favor of the Veteran, the Board finds that the level of severity of the back disability more closely approximates the criteria for a higher 20 percent disability rating. The weight of the evidence is against a disability rating in excess of 20 percent throughout the initial rating period on appeal, as flexion of the thoracolumbar spine limited to 30 degrees or less has not been noted at any time during the rating period on appeal, nor does the evidence demonstrate ankylosis of the spine. Moreover, the evidence does not demonstrate incapacitating episodes of intervertebral disc syndrome of at least 4 weeks in duration. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Board has considered whether any alternate diagnostic codes might serve as a basis for a higher initial disability rating. In this regard, DC 5003 addresses degenerative arthritis. However, in this case, the maximum evaluation possible under Diagnostic Code 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Therefore, it does not allow for a higher evaluation. There are no other applicable codes available for consideration. In denying a disability rating in excess of 10 percent prior to August 16, 2018 and in excess of 20 percent thereafter, the Board has considered the Veteran’s statements that his back disability is worse, as well as his reports of pain and functional limitations. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. Such competent evidence concerning the nature and extent of the Veteran’s back disability has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated. The specific clinical measures of ranges of motion, including examiners’ findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran’s report of pain. Thus, except as otherwise indicated herein, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion such as to enable a finding that the disability picture more nearly approximates a rating even higher than that assigned herein under the General Rating Formula for Diseases and Injuries of the Spine or Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes for the any part of the initial rating period on appeal. The Board acknowledges the Veteran’s argument that the 2013 VA back examination was inadequate. Specifically, in his October 2013 notice of disagreement, he stated that he was not adequately evaluated by the VA examiner, in that he was asked a few questions about his back and sent to the x-ray department; he stated that an x-ray does not show the damage to his spine. Further, he stated that the pain in his back had become worse in the last 6 months, and the steroid injections which used to provide relief no longer did. However, the Board does not find the 2013 VA back examination to be inadequate. The examiner specifically noted that he reviewed an MRI study (in addition to performing x-ray studies), and recorded range of motion findings as well as observations about the Veteran’s pain with motion. The examination report is complete and does not appear to be missing any pertinent information. Moreover, the Veteran was afforded a subsequent VA back examination to assess any worsening in the back disability. Despite the Veteran’s contention of a debilitating back disability, the 10 and 20 percent disability ratings for the back disability indicate a significant impact on his functional ability. Such disability evaluations assigned by VA recognize his painful motion and functional limitations, indicating very generally a 10 and 20 percent reduction in his ability to function due to his back disability. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, except as otherwise indicated herein, the Board finds they do not. The Board has also contemplated whether any separate evaluations are applicable here for neurological impairment associated with the service-connected back disability. However, the Veteran is already in receipt of service connection for radiculopathy of the right and left lower extremities (sciatic and femoral nerves) associated with his back disability. The evidence does not demonstrate any other conditions associated with the back disability. In sum, the Board finds that the evidence is against the assignment of a disability rating in excess of 10 percent for the initial rating period prior to August 16, 2018; however, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 20 percent disability rating, but no higher, have been met for the rating period from August 16, 2018. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TDIU 3. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. The Veteran contends that he is unable to work due to his service-connected disabilities. In an April 2012 letter, he stated that he was working a low-paying job because lifting was no longer an option due to his back disability. In an October 2013 letter, he stated that he had been trying for years to find a job that did not require any lifting, but that in the current economy, it was impossible. He reiterated that he was unable to work at the June 2019 Board hearing. For the reasons discussed below, the Board finds that the weight of the evidence is against an award of a TDIU for the entire rating period on appeal. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if 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. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). 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). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is work that is more than marginal, which permits the individual to earn a “living wage.” See Moore v. Derwinski, 1 Vet. App. 356 (1991). In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; 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 or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). In this case, service connection is in effect for primary insomnia, evaluated as 30 percent disabling; degenerative joint disease of the lumbar spine, evaluated as 10 percent disabling prior to August 16, 2018, and as 20 percent disabling thereafter; right lower extremity radiculopathy (sciatic), evaluated as 20 percent disabling from January 17, 2020; left lower extremity radiculopathy (sciatic), evaluated as 10 percent disabling from January 17, 2020; right lower extremity radiculopathy (femoral), evaluated as 20 percent disabling from January 17, 2020; left lower extremity radiculopathy (femoral), evaluated as 10 percent disabling from January 17, 2020; and hypertension, evaluated as noncompensably disabling. Prior to January 17, 2020, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are not met because the Veteran did not have one service-connected disability with an evaluation of at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent. However, from January 17, 2020, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are met because the total combined disability rating is at least 70 percent, and combining all disability ratings affecting the lower extremities, the Veteran has a single disability rated at least 40 percent. For the period prior to January 17, 2020, a TDIU evaluation can still be awarded if it is established by the evidence of record that the service-connected disabilities have rendered a veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). After a review of all the evidence, the Board concludes that the weight of the evidence demonstrates that referral to the Director of Compensation Service for consideration of an extra-schedular TDIU is not warranted for the rating period prior to January 17, 2020, and that a TDIU is not warranted thereafter, as the weight of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. There is scan information in the claims file regarding the Veteran’s work history. A March 2012 private treatment record reflects that he reported that he was retired but did not provide further information. A June 2012 physical therapy note indicates that the Veteran reported that he had not had to lift heavy items at work, and that he was able to stand 1 to 1 1/2 hours prior to onset of back pain. His work status was noted to be full-time in a light-duty capacity, with no lifting or lifting only one box at a time. The April 2013 VA back examination report indicates that the Veteran was employed on a full-time basis as a shelf stocker. An April 2013 VA mental disorders examination report noted that, after discharge from the military, he worked in security because it would not cause further back problems. He did this from 1992 to 1999 for one company, then moved to New Hampshire, where he worked at a lumber yard. Due to the lifting involved, his back pain returned. He stayed at the lumber yard for 5 years despite the pain but was transferred to a desk job. He was laid off in 2005. He then took a job at CVS as a shift manager. He stayed a year, then was offered a job at a lumber yard as the yard manager. He stayed there a year, then worked at his hometown school in New Hampshire as a head custodian for three-and-a-half years prior to moving to Florida in 2011. Currently, he was working for the Base Exchange at Eglin, stocking shelves part-time, and he also worked at Boeing part-time, emptying trash cans on base. In January 2020, March 2020, and September 2020, the RO sent the Veteran and his representative a letter asking him to complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, or to provide the information requested therein, and have his former employer(s) complete a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Neither form has been completed or returned to VA, nor has the Veteran provided the information requested in those forms. The RO denied entitlement to TDIU in April 2020 and September 2020 supplemental statements of the case (SSOC), explaining that the Veteran did not furnish a VA Form 21-8940 or any information necessary to further consider his claim. The Veteran and his representative were notified of these decisions in letters dated April 6, 2020 and November 5, 2020. To date, neither the Veteran nor his representative have submitted a VA Form 21-8940, any information regarding the Veteran’s current or previous employment, or provided any explanation as to why a VA Form 21-8940 has not been completed or why any relevant information has not been provided. The Veteran’s representative, in a January 2021 Brief, noted the submission of the private treatment records received by VA on December 7, 2020, but did not explain the lack of response to the request for or provide the information requested in VA Forms 21-8940 or 21-4192. The January 2020, March 2020, and September 2020 letters that enclosed the forms stated that the Veteran, if he believed he qualified, should complete, sign, and return a Form 21-8940. The April 2020 and November 2020 SSOCs stated that a TDIU was denied and that a completed Form 21-8940 had not been received. There is no evidence that the Veteran and his representative did not receive the forms or the SSOCs; indeed, the Veteran’s representative acknowledged that the Board had remanded the case in September 2020 in order to obtain a VA Form 21-8940, and acknowledged the issuance of the November 2020 SSOC in the January 2021 Brief. The Veteran has had over one year to supply a Form 21-8940 after being sent a copy of the form by the RO. He and his representative have been notified by letter and SSOCs that TDIU was denied and that a completed Form 21-8940 had not been received. The Board acknowledges that there is evidence of record demonstrating that the Veteran’s service-connected disabilities impact his employment. For instance, the January 2020 VA back examiner noted that low back pain and radiculopathy made worse by light yard work or walking would make these activities difficult as part of a job, and that pain in and of itself causes difficulty in focusing on job related tasks. An April 2013 VA mental disorders examiner, with regard to the service-connected insomnia, assessed occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. As noted above, the Board acknowledges that the Veteran’s service-connected disabilities impact him, as reflected by his combined 70 percent disability rating. However, there is a significant lack of evidence suggesting his disabilities render him unable to secure or follow substantially a gainful occupation. The Board notes that a VA Form 21-8940 contains information on employment and education necessary to adjudication of TDIU. As the Veteran has not submitted this information, the Board does not have all necessary information regarding the status of the Veteran’s current employment and education. There is no proof that the Veteran left his employment due to service-connected disability and there is little proof that he is incapable of substantially gainful employment. There is no evidence relating to his current or previous employment status. The Veteran and his representative have failed to provide VA with this necessary information by failing to provide a VA Form 21-8940. The Board is not denying the case for mere failure to file a form, but, rather, there was additional information that was needed. The duty to assist a veteran in developing evidence is not always a “one-way street.” Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). A veteran must cooperate when he is asked for information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Otherwise, he denies VA evidence which might have helped establish his claim. The evidence does not demonstrate that the Veteran is unable to obtain or retain substantially gainful employment because of his service-connected disabilities. The Veteran has provided no evidence regarding his employability, and what evidence there is does not suggest he is unable to obtain or retain substantially gainful employment. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. The claim for TDIU is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.