Citation Nr: 21029494 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 20-15 816 DATE: May 13, 2021 ORDER From June 15, 2018, an initial rating of 20 percent for degenerative arthritis of the spine (previously rated as lumbosacral strain) is granted, but a disability rating in excess of 20 percent is denied. An initial rating higher than 10 percent for left lower extremity radiculopathy is denied. An initial rating higher than 10 percent for right lower extremity radiculopathy is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. For the period from June 15, 2018, the Veteran's lumbar spine disability has more nearly approximated forward flexion limited to 60 degrees considering all functional loss due to pain on motion and flare-ups of pain but not manifested forward flexion to 30 degrees or less; the condition has not been manifested by ankylosis of the entire thoracolumbar spine, incapacitating episodes of having a total duration of at least 4 weeks, or neurologic abnormalities other than the separately rated bilateral lower extremity radiculopathy. 2. Left lower extremity radiculopathy is manifested by mild incomplete paralysis of the sciatic nerve which is wholly sensory. 3. Right lower extremity radiculopathy is manifested by mild incomplete paralysis of the sciatic nerve which is wholly sensory. 4. The preponderance of evidence is against finding that the Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. From June 15, 2018, the criteria for an initial rating of 20 percent for degenerative arthritis of the spine (previously rated as lumbosacral strain), but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for an initial rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. The criteria for an initial rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1990 to September 1990, December 1991 to December 1995, September 1998 to February 2004, May 2005 to September 2008 and December 2008 to April 2012, with additional reserve service. These matters came before the Board of Veterans' Appeals (Board) from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2020 decision, the Board took jurisdiction of the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded entitlement to a TDIU and an increased rating for the lumbar spine disability for evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a) (2); 38 C.F.R. § 20.900(c). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Lumbar spine Service connection for lumbosacral strain was established in an October 2018 rating decision and a 10 percent initial rating was assigned, effective June 15, 2018. A December 2020 rating decision assigned a 20 percent initial rating for degenerative arthritis of the spine (previously rated as lumbosacral strain), effective November 25, 2020. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Under the rating formula, ratings in excess of 10 percent are provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 (20 percent); for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id. Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note (2). The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Alternatively, Intervertebral Disc Syndrome (IVDS) can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides, in pertinent part, a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1). The Veteran seeks a higher initial rating for her lumbar spine disability, asserting in essence that her symptoms present a greater degree of impairment than is reflected in the currently assigned ratings. In November 2018, she asserted that a higher rating is warranted because x-rays reveal degenerative changes not only at L3-4 but also L5-S1, and she uses prescription pain medication. In March 2020, she asserted that she wears a VA-issued back brace and uses a home electrical stimulation (TENS) unit and takes prescription medication 3 times per day for back pain. During the October 2018 VA examination, the Veteran reported that her low back disability had worsened and she described flare ups with mopping, sweeping, lifting and sitting up straight that impair her ability to walk and stand for prolonged periods. During the January 2020 VA examination, she reported she experiences significant low back pain, described as 8/10 to 9/10 that spreads across her low back, with intermittent pain radiating down her left lower extremity and flare ups (aggravation) of pain with prolonged sitting, standing and walking and getting in and out of her car, such that for the past 9 months she has been unable to mop floors or perform activities requiring bending or lifting because of the increased back pain. She reported that she treats her symptoms with over-the-counter pain medication and muscle relaxants, wears a VA-issued back brace, especially when driving, and was issued a TENS unit although she has not had the opportunity to use it. During the November 2020 VA examination, the Veteran reported worsening back pain and stiffness over the past 18 months and flare-ups of pain and stiffness that occur daily, are moderately severe, last "hours" and impair her ability to sit, stand or walk for more than 10 minutes. After considering the evidence before it, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's disability picture for the lumbar spine more nearly approximated the criteria for an initial rating of 20 percent for the period on appeal for the period from July 15, 2018. The Board acknowledges that range of motion findings during the October 2018 and January 2020 VA examinations revealed greater forward flexion and combined range of motion of the thoracolumbar spine than supports a 20 percent rating under the general formula. For example, the October 2018 and January 2020 VA examinations revealed forward flexion to 70 degrees and 65 degrees, respectively, and a combined range of motion of the thoracolumbar spine of 155 degrees and 145 degrees, respectively. However, both examinations revealed objective evidence of tenderness and pain in all planes of motion (flexion, extension, and right and left lateral flexion and lateral rotation). Further, the October 2018 VA examiner noted the examination was medically consistent with the Veteran's statements of functional loss after repeated use over time and during flare-ups that occur with mopping, sweeping, lifting, sitting up straight, to include driving, and her inability to walk and stand for prolonged periods; and the January 2020 VA examiner noted that interference with sitting and standing contributed to disability. Also, VA treatment in November 2019 reflects an episode of acute back pain for four days and objective evidence of tenderness of the paraspinal muscles, worse with ambulation, as well as muscle spasm and discomfort with forward flexion, extension and side-to-side rotation. Also, VA treatment throughout this period consistently reflects complaints of chronic low back pain that varied in severity, including as high as 8/10 and 9/10, that impaired functioning, and mild to moderately severe tenderness with painful motion noted on bending and with prolonged activity, including driving. See VA treatment records in July 2018, September 2018, July 2019, November 2019, December 2019 and January 2020. VA treatment also shows VA issued a back brace for back pain in November 2019 and a TENS unit in December 2019. See November 2019 and December 2019 VA treatment records and January 2020 VA examination report. Finally, a July 2018 VA x-ray, performed prior to the October 2018 and January 2020 VA examinations, revealed degenerative disc disease at L3-4 and L5-S1, which was not reflected on the October 2018 and January 2020 VA examination reports and indicates that the lumbar spine condition has progressed from a lumbosacral strain to degenerative arthritis of the thoracolumbar spine for the period from June 15, 2018. Thus, the Board concludes that the evidence in the record shows additional functional loss in range of motion and functional impairment due a worsening of the Veteran's worsening lumbar spine condition and flare-ups than reflected in the objective evidence. See DeLuca, 8 Vet. App at 206; 38 C.F.R. §§ 4.40, 4.45. Thus, affording the Veteran the benefit of the doubt, the Board finds that the lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine that more nearly approximated the criteria for a 20 percent rating, but not higher, considering all functional loss and impairment due to pain on movement and during flare-ups. Accordingly, an initial rating of 20 percent, but not higher, for the lumbar spine disability for the period on appeal for the period from June 15, 2018 is granted. Even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, the preponderance of probative evidence does not support a rating in excess of 20 percent based on limitation of motion for any period contemplated by this appeal. See DeLuca, 8 Vet. App at 206; 38 C.F.R. §§ 4.40, 4.45. To merit the assignment of the next highest (40 percent) rating under the General Rating Formula, the evidence must show forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence in this case does not support either finding. Rather, the Veteran's thoracolumbar spine exhibited forward flexion limited to 50 degrees and a combined range of motion of 145 degrees during the November 2020 VA examination, and there was no evidence of ankylosis and muscle strength was normal. See November 2020 VA examination report. Further, while the November 2020 VA examiner noted muscle spasm that resulted in abnormal gait or spinal contour, this finding is consistent with the current 20 percent rating. VA treatment during this period does not document any range of motion test findings pursuant to VA regulations, nor show evidence of ankylosis. In denying an increased rating, the Board has considered functional impairment and the effects of pain on the Veteran's functional abilities due to his lumbar spine disability, including complaints of worsening back pain, stiffness and daily flare-ups of pain and stiffness that are moderately severe, last several hours and impair sitting, standing or walking for more than 10 minutes; constant use of a back brace, use of a TENS unit and daily prescription pain medication. See November 2020 VA examination report. The Board also acknowledges objective evidence of pain causing functional loss in all planes of motion (forward flexion, extension, and right and left lateral flexion and lateral rotation); moderate to severe tenderness to palpation of the lumbar spine; and pain when the spine is non-weight bearing. However, during the November 2020 VA examination, the Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions, and pain prevented only 5 additional degrees of loss of motion in all ranges after three repetitions and during flare-ups, respectively, noted as forward flexion to 45 degrees, extension to 10 degrees and right and left lateral flexion and lateral rotation each to 15 degrees, which the Board notes still shows motion in excess of the 30 degrees forward flexion needed to support the assignment of a 40 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5237; see also Thompson, 815 F.3d at 785 ("[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 criteria."); Mitchell, 25 Vet. App. 32 (finding that limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded). The functional limitations described by the Veteran are contemplated by the current 20 percent rating in effect. Thus, the Board finds that an initial rating in excess of 20 percent rating for the Veteran's lumbar spine disability is not warranted based on functional impairment, and the claim for an initial rating higher than 20 percent for the lumbar spine disability is denied. In reaching these decisions, the Board considered whether the Veteran's lumbar spine disability manifests any associated objective neurologic abnormalities other than the already service-connected bilateral lower extremity radiculopathy so as to warrant a separate rating under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). However, no other associated neurologic abnormalities were found during the October 2018, January 2020 and November 2020 VA examinations, nor noted in VA treatment records. Thus, a separate rating for other neurological abnormalities is not warranted in this case. The Board has also considered whether a rating higher than 20 percent is warranted under the IVDS Formula. An evaluation assigned under the IVDS Formula contemplates both orthopedic and neurological manifestations of disc disease. However, IVDS was not shown during the October 2018 and November 2020 VA examinations, and while IVDS was noted on the January 2020 VA examination, the Veteran is in receipt of separate 10 percent ratings for radiculopathy of the right and left lower extremities, and the evidence in the record does not show episodes of acute signs and symptoms due to IVDS that required prescribed bed rest or medical treatment, so as to support a higher rating. Accordingly, a higher rating is not warranted under the IVDS formula. As a final matter, the Board notes that the rating criteria for the spine were amended on February 7, 2021. The change to Diagnostic Code 5243 states that the criteria should be applied for intervertebral disc syndrome only when there is disc herniation with compression and/or irritation of the adjacent nerve root. As the evidence does not reflect that the Veteran suffers from lumbosacral disc herniation, the revised criteria is not applicable. Further, under the change to Diagnostic Code 5003, degenerative arthritis will be rated on the basis of limitation of motion for the specific joint or joints involved and thus, in this case, will not provide a more favorable rating than the current 20 percent rating. Radiculopathy, bilateral lower extremities Service connection for radiculopathy of the left and right lower extremities was established in a December 2020 rating decision. A 10 percent rating was assigned to the left lower extremity, effective January 10, 2020, and a 10 percent rating was assigned to the right lower extremity, effective November 25, 2020, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides the ratings for paralysis of the sciatic nerve. Ratings of 10, 20, 40 and 60 percent are assigned for incomplete paralysis that is, respectively, mild, moderate, moderately severe, and severe with marked muscle atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology 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. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. After reviewing the record, the Board finds that the preponderance of evidence is against assigning initial ratings higher than the 10 percent ratings in effect for left lower extremity radiculopathy and right lower extremity radiculopathy, and that there is no basis for the assignment of compensable ratings for radiculopathy of the lower extremities for the period prior to the respective effective dates assigned. During an October 2018 VA central nervous system examination, the examiner diagnosed restless leg syndrome but found the Veteran did not have any other central nervous system condition, muscle weakness in the extremities or muscle atrophy. Neurologic examination showed normal gait, muscle strength and reflexes. The examiner indicated there was no functional impairment of the extremities. During an October 2018 VA peripheral nerves conditions examination, the examiner found the Veteran did not have a peripheral nerve condition or peripheral neuropathy, and the Veteran did not report any symptoms attributable to peripheral nerve conditions. Examination revealed normal muscle strength, normal reflexes, normal sensation, normal gait and no trophic changes. The examiner found there was no evidence of nerve root involvement and no functional impairment of the extremities. During an October 2018 VA back conditions examination, the examiner found the Veteran did not have radiculopathy, radicular pain or other signs or symptoms due to radiculopathy. Examination revealed normal reflexes, normal sensation, normal muscle strength, no muscle atrophy, and no nerve root involvement or other neurologic abnormalities. A January 10, 2020 VA back conditions examiner diagnosed left lower extremity radiculopathy and noted radicular symptoms of mild constant and mild intermittent pain that radiates down the left lower extremity, moderate paresthesias and/or dysesthesias, and moderate numbness. The nerve root involved was the sciatic nerve on the left side. The examiner indicated the left lower extremity radiculopathy was mild in severity. No other nerve groups were affected, and no other neurologic abnormalities were noted. The examiner indicated the Veteran's right lower extremity was not manifested by any radicular symptoms or radiculopathy. Examination revealed normal reflexes, normal muscle strength and no muscle atrophy. Sensory examination of the right side revealed normal sensation in all categories. Sensory examination of the left side revealed normal sensation in the upper anterior thigh (L2) and thigh/knee (L3/4) and decreased sensation in the lower leg/ankle (L4/L5/S1) and foot/toes (L5). Straight leg testing was negative for the right leg and positive for the left leg. The examiner commented that the low back disability had progressed to include left lower extremity radiculopathy. A November 25, 2020 VA back conditions examiner diagnosed bilateral lower extremity radiculopathy associated with the low back disability and indicated reported symptoms of severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. The nerve root involved was the sciatic nerve on both sides, and the examiner indicated the bilateral lower extremity radiculopathy was mild in severity. No other nerve groups were affected, and no other neurologic abnormalities were noted. Examination revealed normal reflexes, normal sensation in all categories, normal muscle strength, no muscle atrophy and negative straight leg testing on both sides. The examiner indicated there was no functional impairment of the extremities and commented that the bilateral lower extremity radiculopathy was an incidental finding on the day of the examination and is directly related to and a progression of the low back disability. VA treatment records during the appeal period reflect symptoms and findings consistent with, and no worse than, those reflected on the VA examinations. For example, during VA treatment in July 2018, the Veteran denied paralysis, loss of balance, extremity numbness or tingling, sensory loss, and loss of bowel or bladder; and examination showed normal muscle strength, normal sensation, normal cranial nerves and no gross restriction of movements of the major joints of the extremities. During an August 2018 VA evaluation for traumatic brain injury, the Veteran reported severe numbness or tingling in parts of her body, loss of balance and mild poor coordination; however, the neurological examination was normal and indicated normal sensation, normal visual field and cranial nerves, and normal motor function, gait and muscle strength. While VA treatment in July 2019 shows a history of occasional radiating pain from the low back to the right knee, the Veteran denied radiating pain at that time, and examination revealed normal sensation and normal muscle strength. During VA treatment in November 2019 for acute back pain, the Veteran denied radiating pain, numbness or tingling in the bilateral lower extremities, and examination revealed normal sensation in the bilateral extremities and negative straight leg testing. Also, examination during VA treatment in December 2019 and January 2020 revealed normal sensation, normal muscle strength and negative straight leg testing. The Board finds that initial ratings higher than 10 percent for left lower extremity radiculopathy and for right lower extremity radiculopathy are not warranted at any point during the appeal periods. To warrant the next highest rating, the evidence must show moderate incomplete paralysis of the sciatic nerve. However, in this case, neither the left nor right lower extremity radiculopathy was manifested by objective findings that more closely approximate moderate incomplete paralysis. Rather, with respect to left lower extremity radiculopathy, the January 2020 and November 2020 VA examiners both found the radiculopathy of the sciatic nerve was mild in severity; and with respect to right lower extremity radiculopathy, the January 2020 VA examiner found no evidence of radiculopathy of the right lower extremity, while the November 2020 VA examiner found the right lower extremity radiculopathy of the sciatic nerve was mild in severity. The Board acknowledges the Veteran's reports of mild constant and intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness of the left lower extremity during the January 2020 VA examination; severe intermittent pain, severe paresthesias and/or dysesthesias and severe numbness of both lower extremities during the November 2020 VA examination; and severe numbness and tingling in parts of her body during August 2018 VA treatment. The Board also acknowledges that sensory examination during the January 2020 VA examination showed decreased sensation in the left lower leg/ankle and left foot/toes, and positive straight leg testing of the left side. However, the November 2020 VA examination showed normal sensation and negative straight leg testing on both sides, and VA treatment records throughout the appeal period consistently show no sensory changes. Further, objective testing during the October 2018, January 2020 and November 2020 VA examinations and during VA treatment do not show any reflex, muscle strength or tropic changes, as reflex examinations were normal in all categories, muscle strength testing was normal and there was no muscle atrophy. Moreover, both the January 2020 and November 2020 VA examiners found the Veteran's left lower extremity radiculopathy was mild in severity, the January 2020 VA examiner found no evidence of right lower extremity radiculopathy, and the November 2020 VA examiner found the newly diagnosed right lower extremity was mild in severity. Additionally, the Board finds the Veteran's radiculopathy symptomatology was considered by the RO in assigning the separate 10 percent ratings for the Veteran's radiculopathy of the right and left lower extremities. Thus, based on this evidence, the Board finds that the symptomatology associated with the Veteran's left lower extremity radiculopathy and right lower extremity radiculopathy more closely approximates mild incomplete paralysis of the sciatic nerve, rather than moderate incomplete paralysis. As the preponderance of evidence is against assigning initial ratings higher than 10 percent for left and right lower extremity radiculopathy at any point during the appeal period, the claims for a higher rating are denied. In reaching this decision, the Board considered whether the Veteran's service-connected right and left lower extremity radiculopathy manifests any associated objective neurologic abnormalities. However, as already discussed, the Veteran is separately service-connected for his low back disability, and the record does not reflect other neurologic disabilities associated with his bilateral lower extremity radiculopathy. Entitlement to a TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with her education and occupational experience by reason of her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status may not be considered when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. 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). A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is rated at 40 percent or more, and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, with the Board's grant in this decision of a 20 percent rating for the lumbar spine for the period from June 15, 2018, service connection is in effect for posttraumatic stress disorder (PTSD) (70% 06/15/2018); headaches (30% 07/18/2018); degenerative arthritis of the spine (20% 06/15/2018); residuals of right ankle surgery (10% 06/15/2018); left lower extremity radiculopathy (10% 01/10/2020); and, right lower extremity radiculopathy (10% 11/25/2020); hypertension (0% 05/14/2016); cystic kidney disease of the left kidney (0% 06/15/2018); right ankle scars (0% 06/15/2018); and, hyperpigmentation of the left cheek (0% 07/18/2018). From June 15, 2018, her combined rating is 70 percent, thus the schedular requirements for entitlement to a TDIU are met. See 38 C.F.R. § 4.16(a). For the period from May 14, 2016 to June 14, 2018 the schedular criteria requirements are not met. 38 C.F.R. § 4.16(b). In August 2018, the Veteran submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, asserting that she was unable to maintain employment due to her service-connected hypertension, headaches and lumbar spine disabilities. The Veteran reported that she completed three years of college; did not have any other education or training; last worked on February 28, 2018 as a full-time general manager at a motel, where she worked from July 10, 2016 to February 28, 2018; and that she did not leave her prior employment because of her disabilities. In September 2018 and October 2018, VA submitted requests to her identified employer for specific employment information pertaining to the Veteran; however, VA did not receive any response. In September 2020, VA requested that the Veteran complete another VA Form 21-8940 to obtain updated employment information; however, the Veteran did not provide further information and did not complete the form. As such, she did not assist in providing additional evidence to the VA that may have been relevant to her claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). After reviewing the available evidentiary record, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected disabilities preclude her from engaging in substantially gainful employment or performing the physical and mental acts required of employment. A November 2020 response from the Social Security Administration (SSA) indicates that there are no medical records for the Veteran, and the evidence in the record does not otherwise reflect that the Veteran receives SSA disability benefits, nor has the Veteran alleged such. The evidence in the record reflects that the Veteran reported she 2018; however, it does not show the Veteran is rendered unemployable due to her service-connected disabilities. In an undated statement associated with the record in October 2018, the Veteran stated that she was not currently working and since March 1, 2018 had been caring for her mother who had colon cancer; she last worked on February 28, 2018; and her goal was to return to work after caring for her mother. She noted that she did not leave her prior employer because of disability limitations but because her mother's health had declined and the motel was being sold. VA treatment records contain multiple references indicating that the Veteran is unemployed and has not worked since February 2018; however, in these records the Veteran reported that she voluntarily quit her previous full-time employment to care for her mother. For example, in July 2018, the Veteran reported she was currently unemployed, had moved from Oklahoma to Texas in March 2018 to help care for her terminally ill mother and was interested in working part-time so she could continue to assist her mother. In August 2018, she reported that she quit her prior job and "needs/wants" to care for her mother and plans to eventually return to work and will work to re-establish herself at that time. In August 2018, she reported that her current employment status was homemaker, she previously lived in Texas working as a hotel manager and completed 3 years of college studying journalism. In December 2019, the Veteran reported that she is not currently working, previously worked as a General Manager for Motel 8 for 2 years before quitting to care for her mother in Oklahoma and prior that that position was in the reserves and worked at the reserve center. See VA treatment dated in February 2018, March 2018, July 2018, July 2018, July 2018, August 2018, September 2018 and December 2019. VA examiners who evaluated the functional impact of the Veteran's service-connected kidney disease, hypertension, hyperpigmentation of the left check and right ankle scar found that none of the 4 disabilities functionally impact the Veteran's ability to work. See August 2018 VA kidney conditions examination report; August 2018, October 2018 and January 2020 VA hypertension VA examination reports; October 2018 VA skin diseases examination report and October 2018 VA scar examination report. While the medical evidence shows some impairment associated with the Veteran's service-connected headaches, PTSD, lumbar spine and bilateral lower extremity disabilities, the evidence does not show that these disabilities render the Veteran unemployable. See Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). For example, while the VA examiner who evaluated the Veteran's tension headaches in October 2018 noted prostrating attacks once per month, he found these attacks were not productive of severe economic inadaptability and found that they functionally impact the Veteran's ability to work only in that she would need to rest as needed. The October 2018 VA examiner who evaluated the Veteran's right ankle found the right ankle surgery residuals would only functionally affect work that requires prolonged walking. Further, while the VA examiner who evaluated the Veteran's psychiatric functioning in October 2018 noted difficulties associated with her PTSD, including disturbances in mood and motivation, difficulty establishing and maintain effective relationships and difficulty adapting to stressful circumstances, the examiner did not find the Veteran was unable to establish and maintain effective occupational relationships and found only reduced reliability and productivity in performing occupational tasks, not deficiencies in most areas or total occupational impairment. Additionally, the examiner observed that the Veteran was alert, well-oriented and cooperative; neatly and appropriately dressed; exhibited liner logical and goal directed thought processes; had intact memory, judgement and insight; and, had normal attention and concentration. The Board acknowledges that the VA examiners who evaluated the Veteran's lumbar spine disability during the course of the appeal found that the Veteran's lumbar spine and bilateral extremity radiculopathy limit her physical ability to perform some occupational tasks and may require allowances; specifically, the October 2018 VA back examiner noted that the Veteran was unable to walk or stand for prolonged periods; the January 2020 VA back examiner found the Veteran would be limited in those occupations that require heavy and unassisted lifting, repetitive rotation of the back, carrying, pushing or pulling heavy object, vibrational stresses, overhead work, and prolonged sitting, and was limited in prolonged walking and standing and would need allowance for rest periods every 30 minutes; and the November 2020 VA examiner found the Veteran's lumbar spine and bilateral lower extremity radiculopathy disabilities, respectively, impacted sitting, standing and walking for periods greater than 10 minutes. However, none of the examiners found that the Veteran's disabilities prevent her from performing light or sedentary work. Finally, following the Board's August 2020 remand, a November 2020 VA examiner who evaluated the Veteran's employability due to her service-connected disabilities opined that the Veteran is as likely as not able to perform light work in a normal 8 hours day, consisting of exerting up to 20 pounds of force occasionally and/or up to up to 10 pounds of force frequently and/or a negligible amount of force constantly to move objects. As noted in the report, the physical demand requirements of light work are in excess of those for Sedentary Work, and a job is rated light work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. Thus, based on the evidence above, the Board finds that the Veteran's service-connected disabilities do not render her unemployable. While the Board acknowledges that the Veteran has not worked since 2018 and that she believes she is unemployable due to her service-connected disabilities, the Board affords greater probative weight to the VA examiners' opinions than to the lay assertions. The Board is sympathetic to the Veteran and her family situation. However, after considering the Veteran's education level, work history and functional impairment noted in the lay and medical evidence, the Board finds that the preponderance of evidence is against finding that the service-connected disabilities render the Veteran unable to maintain substantially gainful employment, and the claim for entitlement to a TDIU is denied. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.