Citation Nr: 21025177 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-15 676 DATE: April 27, 2021 ORDER Entitlement to a rating of 40 percent, but no higher, for intervertebral disc syndrome (IVDS) is granted on and after December 22, 2011, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating of 40 percent, but no higher, for left lower extremity radiculopathy is granted on and after December 22, 2011, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating of 40 percent, but no higher, for right lower extremity radiculopathy is granted on and after December 22, 2011, subject to the laws and regulations governing the payment of monetary benefits. The claim of entitlement to a rating in excess of 10 percent for service-connected status post right ankle surgery is denied. The claim of entitlement to a rating in excess of 10 percent for service-connected status post left ankle surgery is denied. The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s IVDS has resulted in forward flexion of the thoracolumbar spine to 30 degrees, but not unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. 2. Throughout the period on appeal, the Veteran’s left lower extremity radiculopathy manifests as severe incomplete paralysis of the sciatic nerve, but not severe incomplete paralysis with marked muscular atrophy. 3. Throughout the period on appeal, the Veteran’s right lower extremity radiculopathy manifests as severe incomplete paralysis of the sciatic nerve, but not severe incomplete paralysis with marked muscular atrophy. 4. The Veteran’s service-connected status post right ankle surgery is manifested by no more than moderate limitation of ankle motion. 5. The Veteran’s service-connected status post left ankle surgery is manifested by no more than moderate limitation of ankle motion. 6. The Veteran’s service-connected disabilities are not shown to have rendered him unable to obtain or maintain substantially gainful employment prior to November 13, 2018 and no single service-connected disability is shown to have rendered him unable to obtain or maintain substantially gainful employment on or after November 13, 2018. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran’s favor, on and after December 22, 2011, the criteria for a rating of 40 percent, but no higher, for IVDS have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. 2. With resolution of reasonable doubt in the Veteran’s favor, on and after December 22, 2011, the criteria for a rating of 40 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8520. 3. With resolution of reasonable doubt in the Veteran’s favor, on and after December 22, 2011, the criteria for a rating of 40 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a rating in excess of 10 percent for service-connected status post right ankle surgery have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 5. The criteria for entitlement to a rating in excess of 10 percent for service-connected status post left ankle surgery have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 6. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty in the Air Force from January 1989 to April 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). A July 2018 rating decision granted an increased 40 percent rating for the service-connected back disability effective from May 17, 2018. The issues on appeal have been accordingly revised. The case was remanded for additional development in December 2018 and September 2020. The Board notes that service connection was established for right lower extremity radiculopathy in June 2013, for right and left ankle scars in June 2015, and for left lower extremity radiculopathy in July 2018. The Veteran did not submit a notice of disagreement as to any assigned ratings or effective dates as to these matters and they have not been developed for appellate review. The Board will therefore not discuss the ratings for the Veteran’s ankle scars. However, given the recent decision of the United States Court of Appeals for Veterans Claims in Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021), the Board will discuss the radiculopathy ratings despite the lack of a notice of disagreement. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). It is noted, however, that the applicable rating criteria associated with Diagnostic Codes 5242, 5243, and 5271 are essentially unchanged. 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. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id. Such evidence may include facial expression, such as wincing, muscle spasm, and crepitation. See 38 C.F.R. § 4.59. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight bearing and non-weight bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016). An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. 1. IVDS 2. Left Lower Extremity Radiculopathy 3. Right Lower Extremity Radiculopathy Disabilities of the spine, including under Diagnostic Code 5242, are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. A 100 percent rating is provided for unfavorable ankylosis of the entire spine. A 50 percent rating is provided for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is provided for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. 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 10 percent rating is provided 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. When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2. The rating criteria for IVDS require rating of the disability either on the total duration of incapacitating episodes resulting from intervertebral disc syndrome over the past 12 months, or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations with rating for all other disabilities, whichever method results in the higher rating. A 20 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.124a, Diagnostic Code 8520 pertains to paralysis of the sciatic nerve. Under Diagnostic Code 8520, paralysis of the sciatic nerve is rated as follows: complete paralysis (80 percent); severe incomplete paralysis with marked muscular atrophy (60 percent); moderately severe incomplete paralysis (40 percent); moderate incomplete paralysis (20 percent); and mild incomplete paralysis (10 percent). When the involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). In this case, the Veteran contends that his service-connected low back disability is more severe than reflected by the assigned evaluations. His claim for an increased rating was received by VA on December 22, 2011. In statements provided in support of the claims dated in April 2012 the Veteran, his spouse, and various acquaintances attested to his having experienced back pain and being very limited in his activities. In an April 2021 brief the Veteran’s representative asserted that his conditions were worse than what the examiners found and did not take into account the severity of the conditions and how they affected his day to day living at home and at work. The pertinent medical evidence of record includes a January 2011 private treatment report noting the Veteran had intermittent back pain that had not changed or worsened in the past six months. A November 2011 report noted he denied any joint pains, stiffness, or swelling. A June 2012 magnetic resonance imaging (MRI) study included an impression of early lower lumbar degenerative disc disease. At L4-L5 there was a mild broad-based disc protrusion with a tiny right paracentral component which abutted but did not displace the nerve root. At L5-S1 there was a broad-based disc protrusion without nerve root displacement. A VA examination in April 2013 included a finding that pain could limit functional ability during flare-ups, but the examiner stated additional range of motion loss could not be estimated without resorting to mere speculation and provided no rationale for this finding. The Court has held that there must be an adequate rationale for declining to provide an opinion with regard to the functional impact of flare ups and has specifically found that the rationale that an opinion is not possible without directly observing a flare up is inadequate. Sharp, 29 Vet. App. 26. The Board therefore finds that the April 2013 examination report is inadequate for rating purposes and of no probative value; it will play no role in the Board’s analysis. Private treatment records dated in October 2013 noted the Veteran’s report of generalized body pain and back pain. The examiner noted there was good range of motion and no joint swelling, stiffness, or redness. A September 2014 treatment record noted his report of persistent lower back pain and that he denied any radiation of the pain. A May 2015 report noted worsening lower back pain that radiated down his lower extremities. It was worse with prolonged standing or prolonged ambulation. The examiner noted a review of the musculoskeletal system revealed good range of motion without joint swelling, stiffness, or redness. Neurological evaluation revealed a normal gait, intact sensation, and equal motor strength to the left and right lower extremities. The diagnoses included spinal stenosis of the lumbar region with neurogenic claudication. In his May 2015 substantive appeal, the Veteran reported incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. However, he did not report that those episodes required bed rest prescribed by a physician; for that reason, they are not incapacitating episodes as defined above. VA examination in June 2018 included findings that it was not possible to describe the effects of repetition over time or flare-ups in terms of range of motion without resorting to mere speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions. This is the exact rationale the Court found inadequate in Sharp. The Board therefore finds that the June 2018 examination report is also inadequate for rating purposes and of no probative value; it will play no role in the Board’s analysis. The Veteran was afforded an additional VA examination in May 2019, but the Board found the examination report inadequate in its September 2020 decision. The May 2019 examination report is therefore of no probative value and will play no role in the Board’s analysis. VA examination in December 2020 included diagnoses of degenerative arthritis of the spine, IVDS, and bilateral lower extremity radiculopathy. It was noted the Veteran reported worsening symptoms with right leg numbness and bilateral leg and buttocks pain. He described flare-ups of severe muscle spasms and functional impairment to bending, lifting, dressing, and running. Range of motion studies revealed forward flexion to 30 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation 15 degrees. The abnormal range of motion itself contributed to functional loss and limited bending, lifting, dressing, and running. Pain noted upon examination to flexion and extension did not result in or cause functional loss and there was no objective evidence of localized tenderness or pain on palpation. There was evidence of pain on weight bearing. There was no additional limitation in range of motion following repetitive-use testing and during flare-ups. The examination was medically consistent with the statements describing functional loss with repetitive use over time or during flare-ups. There was muscle spasm of the thoracolumbar spine related to flare-ups not resulting in abnormal gait or abnormal spine contour. Additional factors contributing to disability included less movement than normal and interference with sitting and standing. Muscle strength and deep tendon reflexes to the lower extremities were normal, bilaterally. There was no muscle atrophy. Sensation to light touch was decreased to the lower leg/ankle, bilaterally, and to the left foot/toes. It was absent in the right foot/toes. Straight leg testing was positive. There was radiculopathy with severe bilateral lower extremity pain and severe right lower extremity numbness. The severity of radiculopathy to the bilateral sciatic nerves was severe. There was no evidence of ankylosis of the spine or any other neurologic abnormalities or findings related to the thoracolumbar spine. The examiner noted the Veteran had IVDS to the thoracolumbar spine without any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. A brace and cane were used constantly as a normal mode of locomotion. There was no evidence of scars or any other pertinent physical findings, complications, conditions, signs, or symptoms. It was noted that imaging studies documented arthritis of the thoracolumbar spine. The examiner found the Veteran’s thoracolumbar spine condition impacted his ability to work and noted difficulty lifting, bending, standing, and walking. There was no objective evidence of pain when the spine was used in non-weight bearing. Passive range of motion including as due to objective evidence of pain was the same as on active motion. Affording the Veteran the benefit of the doubt, the preponderance of the evidence described above shows that the Veteran’s service-connected IVDS warrants a rating of 40 percent throughout the period on appeal. The only VA examination during the period on appeal that was adequate for rating purposes found forward flexion limited to 30 degrees, which warrants a 40 percent rating under the general formula. However, the preponderance of the evidence does not show that the Veteran’s IVDS warrants a rating in excess of 40 percent under the general formula or the IVDS formula. The record contains no evidence of unfavorable ankylosis of the entire thoracolumbar spine and the Veteran has not contended that his entire thoracolumbar spine is ankylosed in an unfavorable position. The record also contains no evidence of incapacitating episodes of IVDS as defined above. There is likewise no evidence of any other additional, specific neurologic disabilities, with the exception of the radiculopathy discussed below, that may be separately rated. The lumbar spine disability was adequately evaluated under the assigned Diagnostic Codes 5242 and 5243. Affording the Veteran the benefit of the doubt, the preponderance of the evidence described above also shows that the Veteran’s service-connected left and right lower extremity radiculopathy warrants ratings of 40 percent for each lower extremity throughout the period on appeal. The only VA examination during the period on appeal that was adequate for rating purposes found severe bilateral radiculopathy affecting the sciatic nerves. Because a rating for severe incomplete paralysis under Diagnostic Code 8520 requires “marked muscular atrophy” and no examiner or treatment provider has found any muscular atrophy during the period on appeal, the Board finds that 40 percent ratings for moderately severe incomplete paralysis, which are the highest ratings that do not require marked muscular atrophy, most accurately reflect the Veteran’s symptoms. The preponderance of the evidence described above also shows that the Veteran’s bilateral lower extremity radiculopathy does not warrant ratings in excess of 40 percent for each lower extremity during the period on appeal. No examiner or treatment provider found muscular atrophy or complete paralysis during the period on appeal. The Board notes that an adequate discussion of functional loss includes consideration of manifest functional loss during flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because VA regulations under 38 C.F.R. § 3.344(a) and 38 C.F.R. § 4.1 address the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. The degrees of disability specified by VA examination in this case are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Any reports indicative of exacerbation or flare-ups are found to be not quantifiable nor of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell and the provision of 38 C.F.R. § 4.1 and 38 C.F.R. § 3.344(a) regarding stabilization of ratings. The Board acknowledges that the Veteran and those persons submitting statements in support of his claim are competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, lay persons are not competent to identify a specific level of disability. Although three of the April 2012 statements from the Veteran’s acquaintances were provided by medical care professionals, the observations noted merely attested to his having experienced pain and impairment which is consistent with the overall evidence of record. It is noted that competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by VA medical professionals who have examined him. These medical findings directly address the criteria under which the disability is evaluated, including whether a specific symptom caused a level of impairment required for a higher disability rating. The Board accords these medical findings greater weight than any subjective reports of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The preponderance of the evidence in this case is against the claim for any higher or separate ratings except as granted above. 4. Status Post Right Ankle Surgery 5. Status Post Left Ankle Surgery Orthopedic disabilities of the ankle are evaluated under the criteria of 38 C.F.R. § 4.71a. Standard ankle joint motion measurements are described for VA compensation purposes as dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.70, Plate II. Diagnostic Code 5270, effective before and after February 7, 2021, provides a 40 percent rating for ankylosis of the ankle that is fixed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity; a 30 percent rating with ankylosis fixed in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees; and a 20 percent rating with ankylosis fixed in plantar flexion, less than 30 degrees. Diagnostic Code 5271, effective before February 7, 2021, provided a 20 percent rating for marked limitation of ankle motion and a 10 percent rating for moderate limitation of ankle motion. The revised regulations added parenthetical information defining marked limitation of ankle motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and moderate limitation of ankle motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. In this case, the Veteran contends that his service-connected right and left ankle disabilities are more severe than reflected by the assigned evaluations. His claim for an increased rating was received by VA on December 22, 2011. In statements provided in support of the claims dated in April 2012 the Veteran, his spouse, and various acquaintances attested to his having experienced ankle pain and being very limited in his activities. In his May 2015 VA Form 9, the Veteran reported that he experienced swelling, weakness, and pain on walking in the ankles. The pertinent medical evidence of record includes a January 2011 private treatment report noting the Veteran had ankle pain that had not changed or worsened in the past six months. A November 2011 report noted he denied any joint pains, stiffness, or swelling. VA examination in April 2013 included a finding that pain could limit functional ability during flare-ups, but that additional range of motion loss could not be estimated without resorting to mere speculation. As stated above, the Court has held that there must be an adequate rationale for declining to provide an opinion with regard to the functional impact of flare ups and has specifically found that the rationale that an opinion is not possible without directly observing a flare up is inadequate. Sharp, 29 Vet. App. 26. The Board therefore finds that the April 2013 examination report is inadequate for rating purposes and of no probative value; it will play no role in the Board’s analysis. Private treatment records dated in September 2014 noted the Veteran reported recurrent left ankle pain that was sometimes worse on weight bearing and ambulation. He denied any swelling or redness in the joint. The examiner noted an evaluation of the musculoskeletal system revealed good range of motion without evidence of joint swelling, stiffness, or redness. Gait was normal. The Veteran was afforded a VA examination in July 2018, but the Board found the examination report inadequate in its December 2018 decision. The July 2018 examination report is therefore of no probative value and will play no role in the Board’s analysis. The Veteran was afforded an additional VA examination in May 2019, but the Board found the examination report inadequate in its September 2020 decision. The May 2019 examination report is therefore of no probative value and will play no role in the Board’s analysis. VA examination in December 2020 included diagnoses of bilateral lateral collateral ligament sprain and degenerative arthritis to the left ankle. It was noted the Veteran reported current symptoms of constant aches that were worse on weight bearing, walking, and standing. He stated he was unable to run. He reported flare-ups described as intense pain like a toothache and functional impairment as difficulty standing, walking, or running for prolonged periods of time. Range of motion studies revealed right ankle plantar flexion to 20 degrees and dorsiflexion to 14 degrees and left ankle plantar flexion to 15 degrees and dorsiflexion to 12 degrees with functional loss due to range of motion limitation and difficulty standing, walking, or running for prolonged periods of time. Pain noted upon examination to flexion and extension did not result in or cause functional loss. There was objective evidence of moderate localized tenderness or pain on palpation and evidence of pain on weight bearing. There was no objective evidence of crepitus. There was no additional limitation in range of motion following repetitive-use testing. The examiner stated that with repeated use over a period of time and during flare-ups there would be right ankle plantar flexion to 20 degrees and dorsiflexion to 14 degrees and left ankle plantar flexion to 15 degrees and dorsiflexion to 12 degrees. Additional factors contributing to disability included less movement than normal and interference with standing. Muscle strength was normal without muscle atrophy. There was no evidence of ankylosis. It was noted that ankle instability or dislocation was not suspected. A cane was used regularly as a normal mode of locomotion. Radiologic findings documented arthritis to the left ankle. The examiner noted that the disorders impacted the Veteran’s ability to work by causing difficulty with standing, walking, or running for prolonged periods of time. There was no objective evidence of pain when the joints were used in non-weight bearing. Passive range of motion, including due to objective evidence of pain, was the same as active range of motion. Based upon the evidence of record, the Board finds the Veteran’s service-connected status post left and right ankle surgery disabilities are manifested by no more than moderate limitation of ankle motion. There is no evidence of marked limitation of motion (i.e., less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) nor ankylosis to either ankle for any identifiable period of time during the appeal, including as a result of functional loss during flare-ups. The overall evidence of record is persuasive as to these matters. Therefore, entitlement to a rating in excess of 10 percent for the right or left ankle disabilities is denied. The preponderance of the evidence in this case is against the claim for any higher or separate ratings. 6. TDIU A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). VA records show that service connection has been established for sinusitis (50 percent), IVDS (40 percent), left lower extremity radiculopathy (40 percent), right lower extremity radiculopathy (40 percent), status post right ankle surgery (10 percent), status post left ankle surgery (10 percent), painful right ankle scar (10 percent), painful left ankle scar (10 percent), residual lipoma scar (0 percent), right ankle scar (0 percent), and left ankle scar (0 percent). His combined schedular disability rating, after the increased ratings granted above, is 90 percent from December 22, 2011 to November 12, 2018 and 100 percent on and after November 13, 2018. See 38 C.F.R. §§ 4.25, 4.26. The schedular criteria for a TDIU are met. See 38 C.F.R. § 4.16(a). Consideration of entitlement to a TDIU is not rendered moot automatically by the assignment of a 100 percent schedular rating.  A veteran may be awarded special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) based upon a finding that a single disability supports a TDIU rating and other service-connected disabilities are separately ratable at 60 percent or more.  See Bradley v. Peake, 22 Vet. App. 280 (2008).  Because the Veteran has not contended that he is unemployable due to a single service-connected disability, consideration of a TDIU on and after November 13, 2018 is not warranted. The Veteran contends, in essence, that he is unemployable due to his service-connected disabilities. Statements provided in support of the claim dated in April 2012 provided by the Veteran, his spouse, and various acquaintances noted he was very limited in his activities due to his back and ankle disabilities. Those statements also note that he served as a town commissioner. A statement from S.F.D., R.N., noted he worked at a car dealership and served on their local town board. In correspondence dated in February 2014 the Veteran asserted that he was unemployable because of these disabilities. In VA correspondence issued in March 2019 the Veteran was invited to provide additional information if he believed he was unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. He was provided copies of VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. In VA correspondence dated in January 2021 he was notified that additional evidence was required and he was again provided copies of VA Forms 21-4192 and 21-8940. No specific response was received by VA. VA examination reports, including back, radiculopathy, and ankle evaluations in June 2018 and July 2018, noted the service-connected disorders impacted the Veteran’s ability to work. The June 2018 examiner noted he lost up to one week of work time in the past 12 months with difficulty on prolonged standing, walking, and sitting. The July 2018 examiner found he could perform physical labor that did not require heavy lifting, walking long distances, or climbing. VA sinus disorders examination in November 2018 found his sinus disability did not impact his ability to work, a May 2017 VA scars examination report noted his scar from lipoma excision on the back did not impact his ability to work, and an April 2015 scars examination found his bilateral ankle incision scars did not impact his ability to work. In an April 2021 brief the Veteran’s presentative provided reference to VA regulations stating that marginal employment shall not be considered substantially gainful employment. No information was provided as to how it applied in the present case. It was also asserted, in essence, that his VA examiners had failed to consider how his disabilities affected his day to day living at home and at work. No specific information as to these matters was identified. Based upon the available record, the Board finds the evidence does not demonstrate that the Veteran’s service-connected disabilities have rendered him unable to obtain or maintain substantially gainful employment. The Veteran has not provided pertinent information as to his employment as requested by VA nor has he provided any specific information in support of a claim that any employment he may have should be considered marginal employment. As such, information as to the nature of his employment and the reason for any termination from an employer is unavailable. In fact, the information of record indicates that he is or has been employed at a car dealership and that he has served as a town commissioner. There is no information as to any specific limitations in the activities associated with these activities. (Continued on following page) Although VA examination reports clearly indicate his service-connected thoracolumbar spine, radiculopathy, and ankle disabilities impacted his ability to perform any type of occupational task, the overall evidence of record does not demonstrate that his service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment prior to November 13, 2018 or that any single service-connected disability rendered him unable to obtain or maintain substantially gainful employment on or after November 13, 2018. The appeal as to this matter is denied. Ryan Frank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.