Citation Nr: 21027146 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-53 502 DATE: May 4, 2021 ORDER Entitlement to restoration of a 60 percent disability rating for service-connected lumbar spine spondylosis (a low back disability) is denied. Entitlement to a 20 percent disability rating from September 1, 2016 to December 5, 2018, but no higher, for a service-connected low back disability is granted. Entitlement to a 40 percent disability rating, but no higher, from December 6, 2018, for a service-connected low back disability is granted. Entitlement to restoration of a 40 percent disability rating for service-connected left lower extremity radiculopathy affecting the sciatic nerve is denied. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy affecting the sciatic nerve is denied. Entitlement to a separate 20 percent rating for left lower extremity radiculopathy affecting the femoral nerve from April 26, 2018 is granted. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to March 12, 2015 is granted. REMANDED Entitlement to a separate rating for neurological impairment, other than radiculopathy, resulting from a service-connected low back disability is remanded. Entitlement to a TDIU from September 1, 2016 is remanded. FINDINGS OF FACT 1. A June 2016 rating decision reduced the Veteran's service-connected low back disability from 60 percent to 10 percent, effective September 1, 2016; the 60 percent rating had been in effect for less than five years and the reduction resulted in a decreased combined disability rating. 2. Evidence at the time of the reduction demonstrated an overall improvement in the Veteran's low back disabilities range of motion and an improvement in the ability to function under the ordinary conditions of life and work, and the disability picture met the relevant diagnostic criteria for a reduced rating. 3. From September 1, 2016 to December 5, 2018, the Veteran's low back disability more closely approximated a combined range of motion of the thoracolumbar spine less than 120 degrees. 4. From December 6, 2018, the Veteran's low back disability more closely approximated favorable ankylosis of the thoracolumbar spine. 5. A June 2016 rating decision reduced the Veteran's service-connected left lower extremity radiculopathy from 40 percent to 20 percent; the 40 percent rating had been in effect for less than five years and the reduction resulted in a decreased combined disability rating. 6. Evidence at the time of the reduction demonstrated an overall improvement in the Veteran's left lower extremity radiculopathy and an improvement in his ability to function under the ordinary conditions of life and work, and the disability picture met the relevant diagnostic criteria for the reduced 20 percent rating. 7. The Veteran's left lower extremity radiculopathy affecting the sciatic nerve has more closely approximated moderate incomplete paralysis. 8. The probative evidence of record reflects that the Veteran's service-connected low back disability has manifested left lower extremity radiculopathy effecting the femoral nerve from April 26, 2018. 9. Prior to March 12, 2015 the Veteran's service-connected disabilities precluded him from obtaining or maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for restoration of a 60 percent disability rating for a service-connected low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.344, 4.71a, Diagnostic Codes 5237, 5243. 2. The criteria for a 20 percent disability rating, but no higher, from September 1, 2016 to December 5, 2018 for a service-connected low back disability have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 3. The criteria for a 40 percent disability rating, but no higher, from December 6, 2018 for a service-connected low back disability have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 4. The criteria for restoration of a 40 percent disability rating for a service-connected left lower extremity radiculopathy affecting the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.344, 4.124a, Diagnostic Code 8520. 5. The criteria for a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy affecting the sciatic nerve have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 6. The criteria for a separate 20 percent rating for left lower extremity radiculopathy affecting the femoral nerve from April 26, 2018 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 7. The criteria for entitlement to a TDIU prior to March 12, 2015 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2016 and May 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in August 2019 and again in September 2020, where they were remanded for additional development. They now return for further appellate review. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2019. By way of background, the Veteran was initially awarded service-connection for his low back disability in August 2012. While this rating decision assigned an initial 10 percent disability rating effective August 4, 2011, a subsequent decision the following September 2011 increased this initial rating to 20 percent. The August 2012 decision also assigned an initial 20 percent rating for left lower extremity radiculopathy as associated with the low back disability, also effective August 4, 2011. The Veteran did not express disagreement with these initial ratings and the rating decisions became final. Thereafter, the Veteran filed a claim for an increased rating for his low back disability and its associated radiculopathy in August 2013, and the RO provided a new VA examination in November 2013. Based on the findings of this examination, the RO increased the Veteran's rating for his low back disability to 60 percent, and his left lower extremity radiculopathy to 40 percent, in a February 2014 rating decision. Both increases were effective the date of his August 7, 2013 increased rating claim. In an October 2014 correspondence, the RO notified the Veteran that he was being scheduled for a new VA examination to determine the current severity of his disability, which was provided later that month. Per VA regulations, disability ratings which are likely to improve or have been continued at the same level for fewer than five years do not qualify for certain protections under 38 C.F.R. § 3.344(a) and (b); instead, such ratings are subject to periodic re-examination that may potentially disclose mental or physical improvement, which if shown, will warrant a reduction in rating. See 38 C.F.R. § 3.344(c). Based on a finding that the October 2014 examination established sustained improvement in his condition, the Veteran's disability rating was proposed to be reduced from 60 to 20 percent, which would also result in a decrease in his overall combined evaluation from 90 to 70 percent. In June 2015, and after an additional VA back examination in April 2015 for the purposes of a TDIU claim, the RO now indicated that the Veteran's disability was to be further reduced to 10 percent. This decision also noted that the Veteran's left lower extremity radiculopathy rating was proposed to be reduced from 40 to 20 percent. Thereafter, the RO effectuated the Veteran's proposed reductions in June 2016, effective September 1, 2016, resulting in the present appeal, which now includes both the issues of entitlement to increased disability ratings and the propriety of the reductions of both his low back and left lower extremity radiculopathy disabilities. While the RO has since increased the Veteran's low back disability to 20 percent effective December 18, 2019, as higher ratings are still available, the entire period from the September 1, 2016 reduction remains in appeal. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Under 38 C.F.R. § 3.105(e), when a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Procedurally, the RO here provided the appropriate notice and response time by issuing a rating decision in June 2015 proposing the reduction and setting forth all material facts and reasons for the reduction. Therefore, the next question for the Board to address is whether the reduction was warranted. As for whether the reduction was proper on a factual basis, substantively, a rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155. While 38 C.F.R. § 3.344 provides additional requirements for ratings that have been in effect for five or more years, such is not the case here. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that, in any case, a rating reduction must be based on improvement in a disability that reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 421 (1993). The burden is on the Board to find, by a preponderance of the evidence, that reduction was warranted. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Care must be taken to ensure that a change in an examiner's evaluation reflects an actual change in a veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22. VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement. See Faust v. West, 13 Vet. App. 342, 349-50 (2000). 1. Entitlement to a disability rating in excess of 10 percent prior to December 18, 2019, and in excess of 20 percent thereafter, for a low back disability, to include the propriety of a rating reduction from 60 percent to 10 percent effective September 1, 2016. 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."). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when 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 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. Here, range of motion (ROM) testing was performed during the VA examination afforded in October 2014 for his initial increased rating claim (which resulted in the first notification that his rating was proposed to be reduced) and showed at worst 60 degrees of flexion and 115 degrees of combined motion. During a subsequent examination in April 2015, which that took place while his 60 percent rating was proposed to be reduced, ROM testing showed at worst 70 degrees flexion and 160 degrees of combine motion. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. While given the opportunity to describe functional limitation related to the disability, the Veteran's statements do not show the requisite limitation of motion necessary for a higher rating. Notably, the Veteran reported during both examinations that low back disability manifested flare-ups of pain requiring him to rest and take pain medication. The examiner in in 2014 estimated range of motion during flare-up and after repetitive use over time would be at worst 60 degrees of flexion and 115 degrees of combined motion. Further, the 2015 examination, the examiner noted that the examination results were medically consistent with the Veteran's statements describing functional loss during flare-ups and after repetitive use over time. Thus, the Board finds that the range of motion findings on examination depicted the estimated range of motion during a flare-up and after repetitive use over time. Treatment records at the time of the Veteran's proposed reduction do not show greater limitation of motion than the examination findings, with the Veteran reporting increased low back pain with prolonged standing and walking. Given the above, the record reflected an improvement in the Veteran's low back disability under the ordinary conditions of life. The findings upon VA examination in 2014 and 2015 indicated, at worst, forward flexion to 60 degrees and a combined range of motion of 115 degrees. The Board notes, importantly, that the Veteran's 60 percent disability rating was not based on limitation of motion, but rather on the IVDS Formula, particularly that his IVDS resulted in incapacitating episodes having a total duration of at least six weeks during the previous 12 months. See 38 C.F.R. § 4.71a, IVDS Formula (2020). Here, however, while IVDS was noted upon VA examination in 2014 and again in 2015, neither examiner found that he had any incapacitating episodes as defined by regulation. The Board finds this to be clear evidence of an improvement of his disability under the ordinary conditions of life. Therefore, the Board finds that the rating reduction itself was proper, and entitlement to restoration of the 60 percent disability rating under the Diagnostic Codes for limitation of motion of the spine is denied. However, given the above, the Board finds that the assignment of a 10 percent rating was incorrect, and that a 20 percent rating should have instead been assigned from September 1, 2016. In particular, the 2014 examination indicated a combined range of motion of only 115 degrees in the thoracolumbar spine. The examiner also indicated guarding and muscle spasm of the thoracolumbar spine resulting in abnormal gait or spinal contour. This is commensurate with a 20 percent rating under Diagnostic Code 5237. While the Board acknowledges that the subsequent examination in 2015 indicated a combined range of motion of 160 degrees, based on the Veteran's subjective statements at the time the Board resolves reasonable doubt in his favor and finds that a 20 percent rating is warranted for the period beginning September 1, 2016. A 40 percent rating is not warranted from September 1, 2016 absent forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis (or the functional equivalent) of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Spinal Formula. Incapacitating episodes as defined by regulation as having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. However, the Board does find that a higher, 40 percent rating is warranted effective the date of a December 6, 2018 VA examination based on favorable ankylosis of the thoracolumbar spine. While the Board acknowledges that no VA examination of record diagnosed the Veteran with ankylosis, the functional equivalent of ankylosis during flare-ups of pain, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis, specifically a rating higher than 20 percent for the lumbar spine. Chavis v. McDonough, No. 18-2928, slip op. at 11 (U.S. Vet. App. Apr. 16, 2021). In Chavis, the Court noted that the rating criteria define ankylosis in terms of limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). The Court further found that ankylosis is an objective finding and not a diagnosis. Sections 4.40 and 4.45 permit for a higher evaluation to be awarded where there is additional functional loss and/or limitation of motion due to factors such as pain, weakened movement, excess fatigability, and incoordination, during flare-ups and/or after repeated use over time. See Mitchell, 25 Vet. App. at 36-37; DeLuca, 8 Vet. App. at 205-06. The Court concluded that nothing in the regulations or caselaw suggests that what is colloquially known as the DeLuca factors should not apply in the context of ankylosis, noting this conclusion is consistent with VA's aim to "ensure that a claimant is properly compensated, but not overcompensated, for the actual level of impairment." Lyles v. Shulkin, 29 Vet. App. 107, 118 (2017). Here, a VA examination on December 6, 2018 noted the Veteran as being unable to bend due to spinal fusion, with the examiner determining that this amounted to favorable ankylosis of the thoracolumbar spine. While he was noted to be able to perform forward flexion to 35 degrees in a subsequent examination in December 2019, the examiner noted the Veteran's reports of an inability to bend during flare-ups of pain, and also diagnosed him with favorable ankylosis. As such, the Board resolves all doubt in the Veteran's favor in finding that his low back disability has manifested the functional equivalent of favorable ankylosis during flare ups of pain since December 6, 2018. The record does not indicate unfavorable ankylosis at any point to warrant at least the next higher 50 percent rating. The Board notes that "unfavorable ankylosis" is defined as "a condition in which the entire cervical spine, 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 dislocation; or neurologic symptoms due to nerve root stretching." See id., Note (5). None of these have been shown by the record. In sum, a rating in excess of 60 percent is not warranted for the time period from August 7, 2013, to August 31, 2016, as there was no evidence of unfavorable ankylosis of the entire spine, to include on VA examination in November 2013 wherein the Veteran had forward flexion of his lumbar spine to 60 degrees. Further, restoration of the Veteran's 60 percent rating from September 1, 2016, forward, is denied. However, resolving all doubt in his favor, a 20 percent rating for the Veteran's low back disability from September 1, 2016, and a 40 percent rating from December 6, 2018, is granted. The Board notes as a final matter, that the RO recently awarded the Veteran a separate, noncompensable (zero percent) rating for a residual scar from a 2005 laminectomy. To date, the Veteran has not expressed disagreement with the rating assigned. Regardless, a January 2021 VA Scars/Disfigurement examination report indicates that the Veteran has one scar on the lower back measuring 23 x 0.25 centimeters. It was not found to be painful, unstable, or resulting in limitation of function. Thus, a compensable rating for the scar associated with his low back disability is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. 2. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy, to include the propriety of a rating reduction from 40 percent to 20 percent effective September 1, 2016. Similar to the Veteran's low back disability, for the following reasons the Board finds that the reduction of his left lower extremity radiculopathy to 20 percent effective September 2016 was proper. Additionally, a rating higher than 20 percent is not warranted at any point since. The Veteran's bilateral radiculopathy is rated under Diagnostic Code 8520 for impairment of the sciatic nerve. 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve, manifested by foot dangle and drop, no active movement possible of the muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The Board notes that "Mild" as relevant to a physical condition, is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed April 28, 2021). "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. The term "severe" is used throughout the rating schedule, including in Diagnostic Code 8520, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 8520, which establishes a successive, tiered rating structure, it represents the highest or most extreme level of incomplete paralysis. As previously noted, the Veteran filed a claim for an increased rating for his low back disability and its associated radiculopathy in August 2013, and the RO provided a new VA examination in November 2013. Based on the findings of this examination, the RO increased the Veteran's rating for his left lower extremity radiculopathy to 40 percent (moderately severe incomplete paralysis) in a February 2014 rating decision, effective the date of his August 7, 2013 increased rating claim. Of note, the November 2013 examination reflected reduced muscle strength in the left lower extremity, with active movement against some resistance during hip flexion, ankle dorsiflexion, and great toe extension. Reflexes were hypoactive at the knee and entirely absent at the ankle. Further, sensation was decreased at the ankle and entirely absent at the foot/toes. As with the low back disability, the Veteran's 40 percent rating for left lower extremity radiculopathy was in effect for less than five years; thus, the disability was not considered stabilized and therefore subject to improvement and possible reduction in rating. See Brown, 5 Vet. App. at 421; 38 C.F.R. § 3.344(c). Upon VA examination in October 2014 and April 2015, muscle strength was reduced only with hip extension. Strength was normal from knee extension through great toe extension. Additionally, sensation was no longer absent in any part of the extremity and noted to be only decreased at the foot/toes. Notably, while reflexes were hypoactive at the knee in 2014, they were entirely normal in 2015. Both examiners opined, after interview and examination of the Veteran, that his lower extremity radiculopathy was now only moderate in severity. Moreover, the Veteran underwent subsequent examinations in December 2018, December 2019, and January 2021. While the Board acknowledges the Veteran's subjective reports of severe paresthesias and/or dysesthesia, pain, and numbness, particularly during the December 2018 examination, physical examination revealed strength was, at worst, 3/5 from hip flexion through great toe extension and the Veteran was without muscle atrophy. Reflexes were hypoactive in December 2018 and December 2019, but normal in January 2021. Sensory testing revealed no more than decreased sensation through the lower extremity, but not at all absent. After considering his statements and the examination findings, the examiner determined the Veteran had no more than moderate incomplete paralysis of the sciatic nerve. Based on the foregoing, the Boards finds that the RO's decision to reduce the evaluation for the Veteran's left lower extremity radiculopathy from 40 to 20 percent, effective September 1, 2016, was proper. In addition, a rating in excess of 20 percent is not warranted for any period since absent moderately-severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. While the Board notes that the Veteran's is also service connected for right lower extremity radiculopathy affecting the sciatic nerve from August 2013, he has not expressed disagreement with this rating. Regardless, and similar to his left lower extremity, no medical examiner has opined after interview and physical examination of the Veteran that his right lower extremity radiculopathy affecting the sciatic nerve has been more than moderate in severity. However, the Board notes that both the December 2018 and December 2019 VA examinations indicate that the Veteran's low back disability also manifests radiculopathy affecting the femoral nerve, bilaterally. As the femoral nerve is part a separate nerve branch from the sciatic nerve, a separate award is not precluded by the rule against pyramiding (rating the same symptom twice). 38 C.F.R. § 4.14. The record also reflects that the RO has already separately awarded the Veteran service connection for radiculopathy affecting the right femoral nerve effective April 26, 2018, the date of a VA Form 21-526EZ, which was submitted contemporaneous with medical treatment records noting a number of lower extremity problems, including his radiculopathy. As such, and although his left femoral nerve impairment is not clinically confirmed until December 2018, the Board affords the Veteran the benefit of the doubt in finding that his left lower extremity radiculopathy also manifested incomplete paralysis of the left femoral nerve from April 26, 2018, and a separate 20 percent rating is warranted from that date. The Board acknowledges that the December 2019 examination also indicates involvement of the posterior tibial nerve, bilaterally. However, unlike the femoral nerve, a separate rating under Diagnostic Code 8525 is not available as the posterior tibial nerve is also part of the sciatic nerve branch, and to provide a separate rating under Diagnostic Code 8525 in addition to Diagnostic Code 8520 would constitute pyramiding. In sum, a rating in excess of 40 percent is not warranted for the time period from August 7, 2013, to August 31, 2016, as there was no evidence of severe incomplete paralysis with marked muscle atrophy, to include on VA examination in November 2013 wherein the examiner reported that the Veteran did not have muscle atrophy. Further, restoration of the Veteran's 40 percent rating for left lower extremity radiculopathy affecting the sciatic nerve is denied, as is a rating in excess of 20 percent at any point since. However, resolving all doubt in his favor, a separate 20 percent rating for left lower extremity radiculopathy affecting the femoral nerve from April 26, 2018 is granted. To the extent that the Veteran asserts that his low back and left lower extremity radiculopathy disabilities are worse than the current ratings assigned, the Board has considered those statements. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. 3. Entitlement to a TDIU prior to March 12, 2015. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran filed claim for a TDIU on March 12, 2015, asserting that he was unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities, particularly his low back disability. While the RO granted a TDIU in May 2017, effective the date of his March 12, 2015 claim, it was not awarded beyond September 1, 2016, as he no longer met the schedular criteria from that date. As the Veteran has contended that his low back disability rendered him unemployable and that increased rating claim above stems from an August 7, 2013 claim, the issue of entitlement to a TDIU prior to March 12, 2015, remains on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). The issue of entitlement to a TDIU from September 1, 2016 is addressed in the Reason for Remand section below. Prior to March 12, 2015, because the Veteran's low back disability was 60 percent disabling from the date of his August 7, 2013 increased rating claim, with a combined evaluation of 90 percent, the Veteran met the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected disabilities for the relevant period prior to March 12, 2015. 38 C.F.R. § 4.16(a). As noted, the RO awarded the Veteran a TDIU from March 12, 2015, which was based on a finding that the combined effects of his low back disability and its associated radiculopathy rendered him unable to obtain and maintain gainful employment. As the Veteran's disability ratings were the same for the period prior, the Board finds no reason why a TDIU should not have been awarded back to the date of his August 7, 2013 increased rating claim. Of note, his March 2015 application for unemployability states that his low back disability resulted in him having to resign as an X-ray technician due to his difficulty moving and operating the necessary equipment. While he reported completing a college education, he noted no other education or training. An April 2015 VA Form 21-4192 confirms that the Veteran resigned, and that his last day of employment was in September 2006. VA examinations afforded between 2012 and 2014 to assess the nature and severity of his back disability and associated bilateral radiculopathy note that the Veteran could not stand or walk for prolonged periods of time. Additionally, a November 2013 VA examination for his service-connected knee disability notes that it manifested limited mobility. Of particular note, a November 2013 VA back examiner opined that the Veteran's back disability was so severe at the time that it required the use of narcotics for pain, and that he also had difficulty sitting, in addition to standing and ambulating, and that he "would be unable to perform the duties of either manual or sedentary labor" due to his back and associated radiculopathy. Even if the Board were to determine that the Veteran's musculoskeletal disabilities did not prevent him from an occupation where he could remain seated, the Board assumes that his higher-level education was for the purposes of his previous occupation as an X-ray technician. The record does not reflect any education, training, or work history that would suggest he could have worked in any actual sedentary "desk job" during this period. The Board also notes again that the Veteran's low back disability was rated as 60 percent disabling at the time based on the fact that the Veteran had incapacitating episodes of physician-prescribed bedrest having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. Based on the foregoing, and for the same reasons the RO determined a TDIU was warranted from the date of his formal TDIU application on March 12, 2015, the Board finds no reason to suspect that the combined effects of his service-connected disabilities did not render him unemployable for the appeal period prior. Thus, entitlement to a TDIU prior to March 12, 2015 is granted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. REASONS FOR REMAND While the Board regrets further delay, there are remaining issues that must be remanded for additional development. 1. A separate rating for neurological impairment, other than radiculopathy. VA back examinations beginning in December 2018 indicate a history of bowel and bladder dysfunction that raise the issue of whether the Veteran is also entitled to additional separate ratings for these symptoms as associated with his service-connected low back disability. Pursuant to Note (1) under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including bowel or bladder impairment, are to be evaluated, separately, under an appropriate diagnostic code. Therefore, remand is required to obtain a VA examiner's opinion that addresses the nature, history, and severity of any neurological impairments other than his lower extremity radiculopathy. The RO should then consider whether a separate rating is warranted pursuant to VA regulations. 2. Entitlement to a TDIU from September 1, 2016. Based on the RO's May 2017 grant of entitlement to TDIU from March 12, 2015 to September 1, 2016, and the Board's grant above for the period prior, the Veteran is in receipt of a TDIU for the entire period on appeal prior to September 1, 2016. No determination has been made since the RO's initial TDIU grant, however, as to whether entitlement to a TDIU for the period on appeal from September 1, 2016 is warranted. Again, the Veteran has pursued his increased rating claim for his low back disability since August 7, 2013, and continually asserted that this disability and its associated impairments have rendered him unable to obtain and maintain substantially gainful employment. As the Veteran's TDIU claim is inextricably intertwined with the issue of a separate neurological disability remanded herein, appellate consideration of entitlement to a TDIU from September 1, 2016 must be deferred pending resolution of the remaining claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes that, for any period from September 1, 2016 for which the Veteran does not meet the schedular requirement for a TDIU under 38 C.F.R. § 4.16(a), he may still be entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Thus, any additional development on the Veteran's TDIU claim from September 1, 2016 must be completed, to include referral to VA's Director of Compensation Service for extraschedular consideration. The matters are therefore REMANDED for the following action: 1. Effectuate the Board's grants of higher disability ratings for his low back disability, a separate rating for left lower extremity radiculopathy affecting the femoral nerve, and entitlement to a TDIU prior to March 12, 2015. 2. Ask the Veteran to identify any outstanding treatment records. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 3. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current neurological impairment other than radiculopathy, to include bowel and/or bladder dysfunction, is related to the Veteran's service-connected low back disability. The need for an examination is left to the discretion of the examiner. To the extent possible, the examiner is also asked to comment on the functional impairment resulting from any additional neurological disability found to be associated with the Veteran's low back disability. 4. Thereafter, conduct any other development deemed necessary, including referring the Veteran's claim for TDIU from September 1, 2016 to VA's Director of Compensation Service for extraschedular consideration as appropriate. 5. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.