Citation Nr: 21023553 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-32 872 DATE: April 21, 2021 ORDER Entitlement to a rating higher than 10 percent for left knee instability is denied. Entitlement to a rating higher than 10 percent for limited flexion, left knee is denied. Entitlement to an initial rating higher than 20 percent prior to July 10, 2015 and higher than 40 percent thereafter for lumbar spine disability is denied. Entitlement to an initial rating higher than 20 percent for left lower extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 26, 2013 on an extraschedular basis is denied. FINDINGS OF FACT 1. Throughout the appeal period, the evidence demonstrates that the Veteran’s service-connected left knee disability was manifested by no more than mild lateral instability. 2. Throughout the appeal period, the evidence demonstrates that the Veteran’s service-connected left knee disability was manifested by flexion greater than 30 degrees. 3. Prior to July 10, 2015, the Veteran’s lumbar spine disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, and with no evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 4. From July 10, 2015, the Veteran’s lumbar spine disability was not productive of unfavorable ankylosis of the entire thoracolumbar spine, and with no evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. 5. During the period on appeal, the overall disability picture of the Veteran’s radiculopathy of the left lower extremity has been more closely approximated by moderate incomplete paralysis of the femoral nerve. 6. Prior to March 26, 2013, the Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5257. 2. The criteria for a rating higher than 10 percent for limited flexion, left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Code 5260. 3. The criteria for an initial rating higher than 20 percent prior to July 10, 2015 and higher than 40 percent thereafter for lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Codes 5242, 5243. 4. The criteria for an initial rating higher than 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.124a, Code 8526. 5. The criteria for a TDIU prior to March 26, 2013 on an extraschedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1982 to March 1985. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided hearing testimony before the undersigned Veterans Law Judge in January 2018. A transcript of the hearing is within the record before the Board. In May 2018, these matters were remanded for further development. The Board observes that in a December 2020 supplemental statement of the case, the RO adjudicated an effective date earlier than January 10, 2010, for the award of a 10 percent rating for limitation of flexion of the left knee. The Board notes, however, that issue was decided in its May 2018 decision. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Unites States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Finally, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 1. Entitlement to a rating higher than 10 percent for left knee instability 2. Entitlement to a rating higher than 10 percent for limited flexion, left knee The Veteran is currently rated 10 percent for left knee instability; as well as a separate 10 percent rating for limited flexion of the left knee. The Board observes that the 10 percent rating for instability has been in effect since 1985. A disability rating that has been continuously rated at or above a certain percentage for at least 20 years is a protected rating. A protected rating cannot be reduced, let alone eliminated, absent a showing of fraud. 38 C.F.R. § 3.951. Because the Veteran received the rating for his left knee instability/impairment over 20 years ago, this rating is protected. In an April 2010 rating decision, the agency of original jurisdiction (AOJ) awarded a separate rating for the Veteran’s left knee disability and assigned a 10 percent disability rating under Code 5003-5260 based on evidence of painful motion, effective January 20, 2010 the date of the claim for an increased rating. In February 2016, the Veteran filed a claim for an increased rating. The Board notes that, during the pendency of the appeal, VA revised the rating criteria for Code 5257, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the former rating criteria, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability of the knee; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. Effective February 7, 2021, Code 5257 was revised. Under the revised rating criteria, a 20 percent disability rating is warranted for one of the following: a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribed a brace and/or assistive devise (e.g. cane(s), crutch(es), walker for ambulation; or b) 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 20 percent disability rating is also 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, cane, or walker. A 30 percent disability rating is warranted for unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribed both an assistive device (e.g., cane(s), crutch(es), walker). Alternatively, 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. 38 C.F.R. § 4.71a, Code 5257 (effective February 7, 2021). Note (1) to Code 5257 notes that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note(2) to Code 5257 notes that 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 Code 5260, a 10 percent disability rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion of the knee limited to 30 degrees; and a 30 percent rating is warranted for flexion of the knee limited to 15 degrees. Id. Under Code 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension of the knee limited to 15 degrees; a 30 percent rating is warranted for extension of the knee limited to 20 degrees; a 40 percent for extension of the knee limited to 30 degrees, and 50 percent for extension of the knee limited to 45 degrees. Id. The Board observes that the words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Upon review of the pertinent VA treatment records during the applicable appeal period, there is no ongoing treatment for the Veteran’s left knee disability that documents left knee instability or compensable limited motion. During September 2016 VA examination the evidence reveals left knee flexion of 0 to 85 degrees and left knee extension of 0 degrees, with pain. Following 3 repetitions of motion left knee flexion was 0 to 80 degrees and left knee extension 0 degrees and following repeated use over time the examiner reported flexion would be 0 to 80 degrees with pain, fatigue, lack of endurance, and incoordination. The examiner stated that the Veteran was not being examined during a flare-up. There was no muscle atrophy, ankylosis, recurrent subluxation, instability, or current meniscal condition reported. The examiner stated there was objective evidence of pain on passive range of motion and on non-weight bearing. During November 2019 VA examination the evidence reveals left knee flexion of 0 to 60 degrees and left knee extension of 0 degrees, with pain. Following 3 repetitions of motion left knee flexion was 0 to 40 degrees and left knee extension 0 degrees and following repeated use over time the examiner reported flexion would be 0 to 40 degrees with pain, fatigue, lack of endurance, and weakness. The examiner stated that the Veteran was not being examined during a flare-up. There was no muscle atrophy, ankylosis, recurrent subluxation, instability, or current meniscal condition reported. The examiner stated there was objective evidence of pain on passive range of motion and on non-weight bearing. Applying the pertinent legal criteria to the facts set forth above, a higher than 10 percent for limitation of flexion in the left knee under Code 5260 would require flexion to be limited to 30 degrees. Flexion was measured beyond 30 degrees at the VA examinations set forth above to, at worst, 40 degrees in flexion the left knee and there is otherwise no clinical evidence demonstrating that flexion is limited to 30 degrees in the left knee in the treatment records. As for a separate rating for limitation of extension due to left knee disability, Code 5261 provides that extension must limited to 15 degrees to warrant a 20 percent rating. This degree of loss of extension is not objectively demonstrated by the VA examination reports set above or any other clinical evidence. As such, ratings higher than 10 percent for limitation of flexion or extension due to disability in either knee cannot be assigned. As for increased compensation for recurrent subluxation in the left knee, under the criteria codified at Code 5257 in effect prior to the recent regulatory revisions, severe recurrent subluxation or lateral instability would be required for an increased rating of 30 percent. The VA examinations set forth above document no instability in the left knee. There is otherwise no clinical evidence of severe recurrent subluxation or lateral instability in the left knee. In making the determinations above, the Board has given proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings in DeLuca and Mitchell, but finds that increased compensation is not warranted under these provisions. In this regard, the most recent VA examinations have reflected consideration of these revisions, with the November 2019 VA examination and there is no indication that flare-ups produce additional limitation of motion. With respect to the examination finding that pain, weakness, or lack of endurance significantly limited functional ability during flare-ups, the compensation currently assigned for the service-connected knee disabilities contemplates significant impairment, to include any occurring during flare-ups. Finally, as to the principles of Correia, consideration of such does not warrant increased compensation. In this regard, although the November 2019 VA examination found that there was objective evidence of pain in both knees on non-weight bearing, the evidence does not reflect limitation of motion to a compensable level for either knee during active or passive range of motion. In making each of the above rating determinations, the Board observes that it has considered carefully the Veteran’s contentions with respect to the nature of the service-connected disabilities at issue and notes that his lay statements are competent to describe certain symptoms associated with these manifestations. However, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. Although the Board accepts the Veteran’s lay statements with regard to the matters he is competent to address, the Board places more probative weight upon the competent medical evidence with regard to the specialized evaluation of functional impairment with consideration of the Veteran’s lay reports. Finally, in making the rating determinations above, the Board has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of increased ratings for the knee disability addressed above. As such, increased compensation for the service-connected left knee disability may not be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to an initial rating higher than 20 percent prior to July 10, 2015 and higher than 40 percent thereafter for lumbar spine disability Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where the combined range of motion of the cervical spine is not greater than 170 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new 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 a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations under Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The pertinent evidence consists of post service treatment records, as well VA examination reports. The post-service treatment records show ongoing treatment for chronic back disability. The treatment records document no evidence that would warrant ratings higher than the current assigned. During August 2010 VA examination, there was no evidence of radiating pain on movement. Muscle spasm was absent. No tenderness was noted. There was no guarding of movement. The examination did not reveal any weakness. Muscle tone was normal. Musculature was normal. There was positive straight leg raising on the right. There was positive straight leg raising on the left. Lasegue’s sign was positive. There was no atrophy present in the limbs. There was no ankylosis of the thoracolumbar spine. Range of motion flexion was to 90 degrees; extension, right lateral flexion, left lateral flexion, right rotation, and left rotation all were to 30 degrees each. During December 2011 VA examination, evidence of limited and painful motion was noted in all directions. There was evidence of straightening of the lumbar lordosis. There was evidence of paraspinal muscle spasm at L3-4, L4-5, and L5-S1. There was no evidence of tenderness or weakness noted. Straight leg raising was negative in sitting and supine positions, bilaterally. Lasegue sign was negative. There was no evidence of radiation of the pain. There was evidence of IVDS involving the left sciatic nerve. There was no evidence of ankylosis. Range of motion flexion was to 50 degrees; extension to 15 degrees; right lateral flexion, left lateral flexion, right rotation, and left rotation all to 20 degrees each. There was no change in range of motion with repetitive use testing. During August 2013 VA examination, range of motion revealed forward flexion to 60 degrees with no objective painful motion; extension to 30 degrees without painful motion; right lateral flexion, left lateral flexion, right lateral rotation, left lateral rotation all to 20 degrees each. There was no evidence of muscle spasm, ankylosis, or prescribed bedrest ordered by a physician. During July 2015 VA examination, range of motion revealed flexion to 30 degrees; extension is to 15 degrees; right and left lateral flexion was to 20 degrees each; and right and left lateral rotation was to 15 degrees each. There was no evidence of muscle spasm, ankylosis, or prescribed bedrest ordered by a physician. During November 2019 VA examination, range of motion revealed forward flexion 20 degrees; extension 5 degrees; right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation all 5 degrees each. There was no evidence of ankylosis, or prescribed bedrest ordered by a physician. As noted, the Veteran is in receipt of a 20 percent rating prior to July 10, 2015, and a 40 percent rating thereafter, under Code 5242. The preponderance of the above evidence demonstrates that the Veteran is not entitled to an evaluation higher than 20 percent prior to July 10, 2015. To meet the criteria for a 40 percent rating, the range of flexion would have to be limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine under Code 5242, or under Code 5243 there would have to be IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The Veteran is competent to report on symptoms, and the Board has considered his complaints in reaching this decision. The Veteran is not competent; however, to determine whether his lumbar spine disability meets the criteria for a higher rating. Prior to July 10, 2015, the record shows that the Veteran’s flexion on exam was found to be, at worst, to 50 degrees, with no evidence of further limitation following repetitive motion or during a flareup. The functional impact was described as decreased physical activity and difficulty sleeping. Although there were complaints of pain, there was no specific weakness, fatigability, or incoordination noted. Furthermore, there was no evidence of muscle spasms or guarding severe enough to result in abnormal spinal contour or abnormal gait. Therefore, even considering loss due to pain after repetitive use, the Veteran is not entitled to an evaluation higher than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. As for functional loss during a flare-up, the Veteran described loss as an inability to repeatedly bend. This functional loss during a flare-up does not more nearly approximate limitation of flexion to 30 degrees or less. Higher evaluations are also available for IVDS. The Veteran has been diagnosed with IVDS; however, there is no probative evidence of record of the Veteran seeking treatment for incapacitating episodes, or that he has been prescribed bed rest by a physician. Therefore, based on the probative evidence of record, the Veteran is not entitled to an evaluation higher than 20 percent for his lumbar spine disability prior to July 10, 2015. The Board finds that from July 10, 2015, the criteria for a rating higher than 40 percent have not been met. During his July 2015 and November 2019 VA examinations, the Veteran had painful motion, flexion to 30 and 20 degrees, respectively, and no evidence of ankylosis. He had no muscle spasms, guarding, or tenderness, or no change following three repetitions or during a flare-up. These findings are consistent with a 40 percent rating. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the motion found by the VA examiners, and VA medical providers, the Board finds that that the Veteran does not have ankylosis of the thoracolumbar spine. As such, an evaluation in excess of 40 percent is not warranted. Again, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca, supra. The provisions of 38 C.F.R. § 4.40 state that 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. To be entitled to the next higher evaluation of 50 percent, there must be ankylosis of the entire thoracolumbar spine, of which there is no evidence. The next higher evaluation is not warranted. Higher evaluations are also available for IVDS, and though he has been diagnosed with IVDS at various times during the period on appeal, there are no indications of doctor prescribed bed rest. Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Code. Separate ratings have already been assigned for bilateral lower extremity radiculopathy. The left lower extremity will be addressed below. The record does not show any other neurological abnormalities associated with the Veteran’s lumbar spine. Accordingly, an additional separate rating for a neurological disability is not warranted. With respect to his lumbar spine scar, the Veteran is in receipt of a noncompensable evaluation for his lumbar scar. Throughout the rating period, the Veteran’s scar has been described as linear, not painful, and not unstable. 38 C.F.R. § 4.118. A compensable evaluation is warranted if the scar is painful or unstable. There is no indication the scar has been painful or unstable, hence, further discussion is not warranted. The Board finds the Veteran is competent to report on symptoms. This competent and credible lay evidence; however, is outweighed by competent and credible medical evidence that evaluates the actual nature of his disability based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. Accordingly, entitlement to an evaluation higher than 20 percent prior to July 10, 2015, and higher than 40 percent, thereafter, for the lumbar spine disability is not warranted. 4. Entitlement to an initial rating higher than 20 percent for left lower extremity radiculopathy The Veteran’s left lower extremity disability is rated under the femoral nerve. The evaluation has been assigned a 20 percent disability rating, under Code 8726, for moderate incomplete paralysis. Code 8526 provides the rating criteria for paralysis of the femoral nerve, and therefore neuralgia (Code 8726) of that nerve. The Board observes; however, that the VA examination reports actually document incomplete paralysis of the left lower extremity sciatic nerve only. See December 2010, December 2011, July 2015, September 2016, and November 2019 VA examination reports. Paralysis of the femoral nerve is evaluated in accordance with the criteria outlined in 38 C.F.R. § 4.124a, Code 8526. Neuritis and neuralgia of that group are evaluated under Codes 8626 and 8726. Under these criteria, moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 disabling. Complete paralysis is rated as 40 percent disabling. Paralysis of the sciatic nerve is evaluated in accordance with the criteria outlined in 38 C.F.R. § 4.124a, Code 8520. Neuritis and neuralgia of that group are evaluated under Codes 8620 and 8720. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened, or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R. § 4.124a. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied levels of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. Miller v. Shulkin, 28 Vet. App. 376 (2017). Pertinent treatment records document moderate constant and intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness. Sensory exam was normal and straight-leg raising test was normal. Left ankle jerk reflex was absent. See December 2010 and December 2011 VA examination reports. During July 2015 VA examination, the Veteran indicated experiencing tingling and numbness of both lower extremities with the left worse than the right. The examiner provided a diagnosis of mild left lower radiculopathy of the sciatic nerve. During September 2016 VA examination, the examiner noted normal muscle strength for the left lower extremity and no evidence of muscle atrophy. Reflexes for the left knee and ankle were normal. Sensory exam for the left lower extremity was normal. Straight raising test was positive. The exam reported mild constant and intermittent pain as well as mild paresthesias and/or dysesthesias, and mild numbness. The examiner reported moderate left lower sciatic nerve radiculopathy. During November 2019 VA examination, normal muscle strength and reflex testing was noted. Straight leg raising was positive. The examiner noted symptoms of intermittent pain; paresthesias and/or dysesthesias; and numbness. The examiner noted moderate radiculopathy involving the left lower extremity sciatic nerve. The Board finds that the Veteran’s radiculopathy of the left lower extremity involves the sciatic nerve root, and has been characterized as moderate in severity during the appeal period. Therefore, his symptoms more closely approximate the 20 percent rating criteria. The evidence shows slightly diminished muscle strength, absent ankle reflex and hypoactive ankle-deep tendon reflexes, and at worst, mild constant pain, and severe intermittent pain. He had slight symptoms such as numbness and paresthesias and/or dysesthesias. His sensory examination of the entire left lower extremity was essentially normal at the VA examinations. The severity of symptoms of radiculopathy of the left lower extremity was described as moderate by at least two VA examiners. His radiculopathy with left sciatic nerve involvement is not more accurately categorized as moderately severe. A higher rating is not warranted during the appeal period for the left lower extremity. 5. Entitlement to a TDIU prior to March 26, 2013 on an extraschedular basis The Veteran asserts that prior to March 26, 2013 a TDIU is warranted. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s 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. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether 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). Nevertheless, even if the Veteran does not meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Thus, despite the Veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would have justified a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Pursuant to the Board remand, the AOJ referred this case to the Director of Compensation Service. In December 2020, after addressing the relevant evidence of record, the Director determined that the preponderance of the evidence does not support the contention that the Veteran’s service-connected disabilities alone result in occupational and social impairment with reduced reliability and productivity or worse. The Board notes; however, the Director’s decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). A TDIU determination is left to the Board’s discretion, not a medical examiner’s discretion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects a disability, or disabilities, have upon a person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Similarly, the Veteran is competent to report symptoms that he experiences which are observable through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has been granted TDIU effective from March 26, 2013. Prior to this, the Veteran was evaluated for lumbar spine disability as 20 percent disabling from January 20, 2010; radiculopathy left lower extremity as 20 percent disabling from January 20, 2010; osteoarthritis left knee as 10 percent disabling from March 5, 1985; limited flexion of the left knee as 10 percent disabling from January 20, 2010; right knee strain as 10 percent disabling from June 4, 2010; post-operative epidermal inclusion cyst as 0 percent disabling from March 5, 1985. The total combined evaluation was 10 percent from March 5, 1985, 50 percent from January 20, 2010, 60 percent from June 4, 2010 to March 25, 2013. The Veteran noted on his formal TDIU claim in February 2016 that he last worked in collections at Hollins Schectoer, and that his last date of employment was October 2009. He indicated that he completed high school and has 2 years of college education, as well as additional training in loan processing. Prior to May 26, 2013, the medical evidence from the Social Security Administration (SSA) documents that the Veteran would not be able to consistently stand/walk or sit in a normal eight-hour day without resting for less than 2 hours and would need extra breaks during the work day of about half a normal break one more times a day. Additionally, he had limitations in lifting more than 10 pounds. The SSA decision noted that the Veteran’s limitations were severe enough to be considered disabling according to SSA guidelines at that time. Although the Board emphasizes that it is not bound by any SSA determination regarding disability benefits when rendering its own decision on entitlement to TDIU on an extraschedular basis, it does shed light on the Veteran’s ability or inability to work and which disabilities significantly impact that inability. In a recent decision, the Court noted that the VA has not explicitly defined the meaning of “sedentary employment.” Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, “the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran’s education, training, and work history.” Id. at 149-150. Merriam-Webster online dictionary defines “sedentary” as (a) “doing or requiring much sitting” or (b) “not physically active.” https://www.merriam-webster.com/dictionary/sedentary. The Board employs this definition in the current analysis The Board observes that although there are limitations due to the Veteran’s back, leg, and knee disabilities during the applicable period, the preponderance of the evidence does not show that the service-connected disabilities prohibited him from obtaining or maintaining gainful employment prior to March 26, 2013. Indeed, there was no indication from the treatment records or a description of functional impairment in the VA examination reports, that the Veteran’s service-connected disabilities alone precluded him from obtaining and retaining substantially gainful employment due to his back and left lower extremity disabilities. Indeed here, the Board envisions potential sedentary employment to encompass a wide variety of administrative or other forms of employment that would allow the Veteran to work with his disabilities—especially in light of his experience, education, and work history. The Veteran has worked as a collections/loan processor and had training in such field. His work experience demonstrated that he was capable of learning new skill sets prior to March 23, 2013. The Board does not doubt that the Veteran’s service-connected disabilities had an effect on his employability prior to March 26, 2013, as evidenced by his combined disability rating. The weight of the evidence, however, does not support a finding that his service-connected disabilities precluded his participation in substantially gainful employment. As such, the Board finds a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.