Citation Nr: 21029679 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 11-04 377 DATE: May 14, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, from June 14, 2006 through April 7, 2016, for left lower extremity radiculopathy of the sciatic nerve, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating higher than 20 percent, from April 8, 2016, for left lower extremity radiculopathy of the sciatic nerve, is denied. Entitlement to an initial compensable rating, from June 14, 2006 through December 1, 2019, and a rating higher than 20 percent, from December 2, 2019, for left lower extremity radiculopathy of the femoral nerve, is denied. Entitlement to an initial 10 percent rating, but no higher, from June 14, 2006 through April 7, 2016, for right lower extremity radiculopathy of the sciatic nerve, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating higher than 20 percent, from April 8, 2016, for right lower extremity radiculopathy of the sciatic nerve is denied. Entitlement to an initial compensable rating, from June 14, 2006 through December 1, 2019, and a rating higher than 20 percent, from December 2, 2019, for right lower extremity radiculopathy of the femoral nerve, is denied. Entitlement to a 40 percent rating, but no higher, from June 14, 2006 through December 1, 2019, for degenerative disc disease L4-5, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating in excess of 40 percent, from June 14, 2006, for degenerative disc disease L4-5, is denied. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from October 27, 2007 through April 7, 2016, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to special monthly compensation (SMC) based on the regular need for the aid and attendance of another person is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. From June 14, 2006 through April 7, 2016, the Veteran's left lower extremity radiculopathy was manifested by at most mild incomplete paralysis of the sciatic nerve. 2. Since April 8, 2016, the Veteran's left lower extremity radiculopathy of the sciatic nerve has been manifested by at most moderate incomplete paralysis. 3. Since December 2, 2019, but no earlier, the Veteran's left lower extremity radiculopathy of the femoral nerve has been manifested by at most moderate incomplete paralysis. 4. From June 14, 2006 through April 7, 2016, the Veteran's right lower extremity radiculopathy was manifested by at most mild incomplete paralysis of the sciatic nerve. 5. Since April 8, 2016, the Veteran's right lower extremity radiculopathy of the sciatic nerve has been manifested by at most moderate incomplete paralysis. 6. Since December 2, 2019, but no earlier, the Veteran's right lower extremity radiculopathy of the femoral nerve has been manifested by at most moderate incomplete paralysis. 7. Since June 14, 2006, the Veteran's degenerative disc disease L4-5 has been manifested by limitation of forward flexion of the thoracolumbar spine to between 30 degrees and 85 degrees, with additional limitation of motion during flare ups and with repeated use over time, and to the extent that medication has ameliorated these symptoms, such amelioration cannot be considered; there is no spinal ankylosis, functional equivalent or spinal ankylosis, or incapacitating episodes due to intervertebral disc syndrome (IVDS) having a total duration of at least 6 weeks during a 12-month period. 8. From June 14, 2006 through April 7, 2016, the Veteran was service-connected for the following disabilities: adjustment disorder with mixed anxiety and depressed mood, now rated 70 percent disabling (see December 2020 Board decision); degenerative disc disease L4-5, now rated 40 percent disabling; left lower extremity radiculopathy of the sciatic nerve, now rated 10 percent disabling; right lower extremity radiculopathy of the sciatic nerve, now rated 10 percent disabling; tinnitus, rated 10 percent disabling; bilateral hearing loss, rated noncompensable; and erectile dysfunction, rated noncompensable, from March 27, 2015 through April 7, 2016; the Veteran's combined disability rating is now 90 percent during this entire period. 9. From October 27, 2007 (but no earlier) through July 29, 2010, the Veteran's service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him. 10. The evidence is at least evenly balanced as to whether the Veteran requires assistance in accomplishing the activities of daily living on account of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, from June 14, 2006 through April 7, 2016, for left lower extremity radiculopathy of the sciatic nerve, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, Diagnostic Code (DC) 8520. 2. The criteria for an initial rating higher than 20 percent, from April 8, 2016, for left lower extremity radiculopathy of the sciatic nerve, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, Diagnostic Code (DC) 8520. 3. The criteria for an initial compensable rating, from June 14, 2006 through December 1, 2019, and a rating higher than 20 percent, from December 2, 2019, for left lower extremity radiculopathy of the femoral nerve, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, Diagnostic Code (DC) 8526. 4. The criteria for an initial 10 percent rating, but no higher, from June 14, 2006 through April 7, 2016, for right lower extremity radiculopathy of the sciatic nerve, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, Diagnostic Code (DC) 8520. 5. The criteria for an initial rating higher than 20 percent, from April 8, 2016, for right lower extremity radiculopathy of the sciatic nerve, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, Diagnostic Code (DC) 8520. 6. The criteria for an initial compensable rating, from June 14, 2006 through December 1, 2019, and a rating higher than 20 percent, from December 2, 2019, for right lower extremity radiculopathy of the femoral nerve, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, Diagnostic Code (DC) 8526. 7. The criteria for a 40 percent rating, but no higher, from June 14, 2006 through December 1, 2019, for degenerative disc disease L4-5, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Codes (DC) 5010, 5242. 8. The criteria for a rating in excess of 40 percent, from June 14, 2006, for degenerative disc disease L4-5, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Codes (DC) 5010, 5242. 9. The criteria for a TDIU due to service-connected disabilities, from October 27, 2007 through April 7, 2016, are met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.340, 3.341, 4.16. 10. With reasonable doubt resolved in favor of the Veteran, the criteria for SMC based on the regular need for the aid and attendance of another person are met. 38 U.S.C. § 1114 (l); 38 C.F.R. §§ 3.350 (b), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to May 1970. These matters initially came before the Board of Veterans' Appeals (Board) from an October 2007 rating decision, in which the agency of original jurisdiction (AOJ) denied entitlement to a rating in excess of 20 percent for degenerative disc disease L4-5. The Veteran testified before a Veterans Law Judge (VLJ) at a March 2015 hearing and a transcript of the hearing is associated with his claims file. The VLJ who conducted the hearing is no longer employed at the Board and is unable to participate in any further adjudication. In July 2017, the Board sent the Veteran a letter which informed him that the VLJ who conducted the March 2015 hearing was no longer employed at the Board, asked him to indicate whether he wanted to attend a new hearing, and indicated that a failure to respond within 30 days would result in an assumption that another hearing was not desired. The letter was sent to the Veteran's address of record and was not returned as undeliverable. A copy of the letter was also sent to the Veteran's representative at the time. The Veteran did not respond to the July 2017 letter. Therefore, it is assumed that he does not want another hearing and the Board shall proceed to consider his appeal. In September 2017, the Board denied the claim for a rating in excess of 20 percent for degenerative disc disease L4-5. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Court set aside the Board's September 2017 decision and remanded to the Board the issue of entitlement to an increased rating for the service-connected back disability and the issue of entitlement to a TDIU (as part and parcel of the claim for an increased rating for the service-connected back disability) for readjudication in compliance with directives specified in an October 2018 Joint Motion filed by counsel for the Veteran and VA. In August 2019, the Board remanded the issues of entitlement to an increased rating for the service-connected back disability and entitlement to a TDIU for further development. In a July 2020 decision, a Decision Review Officer (DRO) awarded an increased (40 percent) rating for degenerative disc disease L4-5, from December 2, 2019. The DRO also awarded a TDIU, from April 8, 2016. As the TDIU claim was raised as part and parcel of the claim for an increased rating for the service-connected back disability (which has a claim period dating back to June 2006), the issue of entitlement to a TDIU, prior to April 8, 2016, remains on appeal before the Board. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In September 2020, the Board expanded the appeal to include the issue of entitlement to SMC based on the regular need for the aid and attendance of another person, as part of the claim for an increased rating for the service-connected back disability. The Board remanded the SMC matter, as well as the issues of entitlement to an increased rating for the service-connected back disability and entitlement to a TDIU prior to April 8, 2016, for further development. As for characterization of the issues on appeal, in a May 2016 rating decision, the AOJ awarded service connection for left and right lower extremity radiculopathy of the sciatic nerves and assigned initial 20 percent disability ratings, both from April 8, 2016. Also, in the July 2020 decision, a DRO awarded service connection for left and right lower extremity radiculopathy of the femoral nerves and assigned initial 20 percent disability ratings, both from December 2, 2019. The Board has included the separate issues of entitlement to higher initial ratings for left and right lower extremity radiculopathy of the sciatic and femoral nerves because these issues are being considered as part of the claim for an increased rating for the service-connected back disability. See 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code). Since the claim period for the back issue dates back to June 14, 2006, the Board has characterized the radiculopathy issues as listed above. In the August 2019 and September 2020 remands, the Board instructed the AOJ to, among other things, afford the Veteran VA examinations to assess the severity of his service-connected back disability. Pursuant to the Board's remand, the Veteran was afforded VA examinations in December 2019, September 2020, and December 2020 to assess the severity of his service-connected back disability. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Board points out that an initial 70 percent disability rating for adjustment disorder with mixed anxiety and depressed mood was awarded in a December 2020 Board decision. This decision has not yet been implemented and the AOJ should take appropriate action in this regard. I. Higher Initial Ratings/Increased Rating Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4 ) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. § 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Entitlement to higher initial ratings for left and right lower extremity radiculopathy of the sciatic nerves (rated noncompensable from June 14, 2006 through April 7, 2016 and 20 percent disabling from April 8, 2016), entitlement to higher initial ratings for left and right lower extremity radiculopathy of the femoral nerves (rated noncompensable from June 14, 2006 through December 1, 2019 and 20 percent disabling from December 2, 2019), and entitlement to an increased rating for degenerative disc disease L4-5 (rated 20 percent disabling from June 14, 2006 through December 1, 2019 and 40 percent disabling from December 2, 2019). A. Background The Veteran's claim for an increased rating for his service-connected back disability was received on June 14, 2006. A September 2005 VA physician note, a May 2006 statement (VA Form 21-4138) from the Veteran, the report of a June 2006 VA back examination, a November 2006 examination report from F.P. Bonikowski, M.D., and a November 2006 MRI report from Radiology & Imaging of South Texas, L.L.P. indicate that the Veteran was employed as an electrician following service from approximately 1972 to 1983 and that he was employed as a letter carrier with the Postal Service at the time of the June 2006 examination. He experienced constant lumbosacral pain which was 6/10 in intensity, aggravated by activities (e.g., carrying objects, such as a mail sack), and radiated to the left inguinal area, leg, and foot. He lost some time from work due to his back disability, but there was no documentary evidence of any physician-prescribed rest. As a result of his back disability, he experienced difficulty with prolonged walking, standing, sitting, climbing stairs, driving a vehicle, and lifting. The pain to his left testicle had intensified. He occasionally used Vicodin to help alleviate his symptoms. Examination revealed that the Veteran had a wide-based, out-toeing, non-antalgic gait and that he frequently grunted, groaned, and grimaced throughout the examination. His spine appeared to be midline without pelvic obliquity, with slight accentuation of the dorsal and lumbar curves. He was diffusely tender to palpation from the thoracolumbar to the lumbosacral regions, not localized to the midline spinous processes, intraspinous spaces, sacroiliac joints, or sciatic notches. There was no paravertebral muscle spasm to palpation. The ranges of motion of the thoracolumbar spine were recorded as being flexion to 85 degrees, extension, left and right lateral bending, and right lateral rotation all to 5 degrees, and left lateral rotation to 10 degrees. There was pain throughout the ranges of motion and with repetition. Heel-toe walking was intact. Supine straight leg raising at 45 degrees bilaterally elicited complaint of lumbar pain, but no radicular symptoms. Seated straight leg raising to 85 degrees was accomplished without difficulty or complaint of pain. Goldthwait and pelvic rock tests were unobtainable due to the Veteran's body mass. Patrick's test demonstrated taut hip adductors bilaterally, and elicited lumbar discomfort at the extremes. Hoover's test was equivocal, Lasegue's test was negative, passive trunk twist test was positive, and axial load test was positive. Moreover, lower extremity motor strength was normal (5/5) throughout, based primarily on resistance to passive range of motion with frequent breakaway of both lower extremities, not specific to a muscle group. Deep tendon reflexes were normal (2+) and symmetrical for the lower extremities with augmentation and distraction. There was a subjective decrease in sensation and light touch in the left lower extremity in a stocking distribution from the upper thigh to the toe-tip. Dr. Bonikowski noted that the Veteran had symptoms that were consistent with peripheral neuropathy, with numbness affecting his feet. The Veteran was diagnosed as having a lower back strain, degenerative disc disease of the lower thoracic and lumbosacral spines, and left leg radiculopathy. The examiner who conducted the June 2006 examination explained that there was no objective clinical evidence that spinal function was additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance (such as with repetition). However, significant functional overlay, as indicated by 3/5 Waddell's nonorganic physical signs, precluded an accurate objective assessment of the severity of the Veteran's disability and current degree of functional limitation. Subjective pain appeared to have the greatest functional impact. The nature and extent of any additional limits on functional ability during flare ups was unobtainable due to the Veteran's inability or unwillingness to quantify those actions or activities. Functional limitations could not be further quantified without resorting to speculation. A March 2007 VA neurological examination report indicates that the Veteran reported that he injured his low back in service and that ever since that time he experienced chronic low back pain and radiating pain down both legs (left worse than right). Nerve conduction studies conducted in October 2004 did not reveal any electrodiagnostic evidence of lumbar radiculopathy or peripheral neuropathy in the lower extremities, but the Veteran was given gabapentin for neuropathic pain in his feet. He was employed as a letter carrier for the Postal Service. Examination revealed that the Veteran was in no distress, that motor strength was normal in the lower extremities, that there was no atrophy or fasciculations, and that reflexes were normal (2+) in the knees and ankles. Sensory testing revealed a slightly decreased pin sensation from the ankles distally and a slightly decreased vibratory sense in both feet. Cerebellar and gait were unremarkable. There was slight tenderness in the left low back region. An MRI revealed evidence of mild compression of the exiting left S1 nerve root. The examiner who conducted the March 2007 examination concluded that the Veteran had symptoms of a left lumbar radiculopathy, although motor and reflex testing was objectively intact. He had slightly decreased vibratory sense in both feet, although nerve conduction studies were negative for electrodiagnostic evidence of peripheral neuropathy. A September 2007 VA back examination report and a June 2008 VA nursing note indicate that the Veteran experienced stiffness of the upper body, lower spine, and legs and weakness at his knees, ankles, and back while both sitting and standing. There was constant pain at the neck and mid and lower lumbar regions and the pain traveled to the mid lower lumbar region and down both legs (more severe on the left). The pain was squeezing/aching in nature, there was a burning pain at the top of the left foot, the pain was 8/10 intensity, would come on by itself, and was relieved with various medications. The Veteran had to rest and use medication when experiencing pain and reported incapacitating episodes which lasted for unspecified days. Examination revealed that the Veteran was wheelchair bound due to a recent right leg fracture. There was evidence of radiating pain on minimal movement in the wheelchair and the pain radiated down both legs. Since the Veteran was wheelchair bound, the examiner was unable to evaluate for the presence of muscle spasms, tenderness, ankylosis, and IVDS, straight leg raise testing, spinal symmetry of movement, and lower extremity muscle strength could not be assessed, and the ranges of spinal motion could not be assessed. Inspection of the spine revealed normal head position and sensory function was within normal limits. The June 2008 VA nursing note includes a diagnosis of right peripheral neuropathy. An August 2010 VA back examination report, a December 2010 VA MRI report from Radiology Associates, LLP, a July 2012 VA primary care nurse note, and the Veteran's testimony during the March 2015 Board hearing indicate that he reported that he fell on the job in 2007 and that his "short steps" and proprioception loss contributed to his fall. He experienced progressively worsening constant back pain on a daily basis which was treated with Vicodin and gabapentin. The pain was located in the mid lower lumbar area, was caused by any activity (e.g., walking, bending, lifting, twisting), was aching/burning in nature, was 6/10 in intensity, and radiated to the dorsal foot on the left and posterior lateral foot. He also experienced numbness, paresthesias, leg/foot weakness, falls, fatigue, decreased motion, stiffness, weakness, and muscle spasms on the right side of his back. There were no incapacitating episodes of spine disease reported during the August 2010 examination, but the Veteran reported during the March 2015 hearing that he had to remain in bed for the majority of the day approximately 3 to 4 days per week. The Veteran was able to walk approximately 50 yards with a cane. His wife provided assistance with activities of daily living that required bending, such as putting on and taking off shoes, socks, and pants. She also sometimes assisted the Veteran with bathing. Examination revealed that the Veteran's posture and head position were normal and that there was symmetry in appearance. He had a very slight antalgic gait on the right knee and reported balance problems and instability (possible proprioception loss). There were no abnormal spinal curvatures and no spinal ankylosis. There was evidence of guarding bilaterally, but no evidence of muscle spasms, muscle atrophy, pain with motion, tenderness, or weakness. The guarding was not severe enough to be responsible for an abnormal gait or abnormal spinal contour. The ranges of motion of the thoracolumbar spine were flexion to 70 degrees and extension, left and right lateral flexion, and left and right lateral rotation all to 10 degrees. There was no objective evidence of pain on active range of motion or evidence of pain following repetitive motion, and there were no additional limitations after three repetitions of the ranges of motion. Moreover, knee and ankle reflexes were normal (2+) bilaterally and plantar flexion was normal bilaterally. There was numbness on a small area of the dorsum of the left foot and down the posterior aspect of the left thigh and calf. There was also a slight decrease in vibration sense of both feet, but position sense, pain/pinprick sense, and light touch were all normal, and there were no dysesthesias. Lower extremity muscle strength was all normal (5/5) bilaterally, muscle tone was normal, and there was no muscle atrophy. Although the ranges of motion were reduced, this represented normal for the Veteran due to other factors not related to disability, and the examiner noted that a significant voluntary component to the limitation of motion was suspected. Sitting straight leg raising was negative, and the spine could be flexed to between 80 and 90 degrees. Active straight leg raising was possible to 70 degrees on the left and 60 degrees on the right, both with complaints of back pain. Lasegue's sign was negative and both straight leg raise tests showed no evidence of a radiculopathy. There were no reflex changes or motor weakness. Sensory changes in the dorsum of the foot were most compatible with a left L5 radiculopathy. The Veteran was diagnosed as having spondylosis of the lumbar spine. The examiner who conducted the August 2010 examination concluded that there was no clinical evidence of radiculopathy, but the December 2010 MRI report includes a diagnosis of right leg radiculopathy. The Veteran stopped working in 2007 due to an injury at work with the Postal Service where he fell and suffered a right knee fracture. The examiner was unable to "separate out the effects of [the Veteran's back problem on his daily activities" because his knee problem was much more limiting. An April 2016 VA back examination report and VA treatment records dated from April to December 2018 indicate that the Veteran experienced worsening back symptoms since an injury in service. For instance, he experienced chronic back pain which radiated down the left leg to his foot, a burning sensation on the top of his feet, numbness along the left buttock and into the left thigh, and dragging of his left foot while walking. Flare ups of symptoms occurred and were described as being painful and uncomfortable. There was functional loss/impairment of the thoracolumbar spine in that pain and limited mobility affected the Veteran's physical activities. The Veteran used medications (e.g., tramadol a couple times per week), ice, pillows, and a back brace to treat his symptoms. Examinations revealed that Veteran had an antalgic, wide-based, low, and mildly unsteady gait. The ranges of motion of the thoracolumbar spine were flexion to 35 degrees and extension, right and left lateral flexion, and right and left lateral rotation all to 10 degrees. The ranges of motion themselves contributed to functional loss in that there was pain with decreased range of motion. There was pain associated with all ranges of spinal motion and the pain caused functional loss. There was no evidence of pain with weight-bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was being examined immediately after repetitive use over time and during a flare up and pain significantly limited functional ability with repeated use over a period of time and during flare ups. However, the examiner specified that the ranges of spinal motion would all remain the same with repeated use over time and during flare ups. Moreover, there were muscle spasms which resulted in abnormal gait or abnormal spinal contour, but there was no localized tenderness or guarding. There were no additional factors contributing to disability. Muscle strength associated with right hip flexion, knee extension, and ankle dorsiflexion was 4/5, but lower extremity muscle strength was otherwise normal (5/5) and there was no muscle atrophy. Reflexes were occasionally trace to 1+ and ankle jerks were occasionally absent. Sensation was decreased at the upper anterior thigh, thigh/knee, and lower leg/ankle bilaterally, and was occasionally diminished at the great toes. Straight leg raise testing was positive bilaterally. The Veteran experienced signs or symptoms due to radiculopathy in terms of moderate lower extremity constant pain, intermittent pain, paresthesias/dysesthesias, and numbness bilaterally. Overall, there was moderate radiculopathy of the sciatic nerve bilaterally. There was no ankylosis of the spine. The Veteran did not have any other neurologic abnormalities or findings related to the thoracolumbar spine. He had IVDS of the thoracolumbar spine, but he had not experienced any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician during the previous 12 months. He regularly used a brace and cane due to his back disability, but there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. There were no scars related to the Veteran's back disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. A diagnosis of degenerative disc disease L4-5 with pain radiating to the right testicle, right buttock, and right and left leg with bilateral IVDS was provided. This disability impacted the Veteran's ability to work in that he experienced trouble sitting, standing, walking for prolonged periods, and bending. The Veteran reported on a February 2019 addendum to a "Veteran's Application for Increased Compensation Based on Unemployability" form (VA Form 21-8940) that as a result of his back disability, he was unable to bend very far without triggering a muscle spasm and that he had to use a grabber device if he wanted to pick things up off the floor. He wore a back brace, was only able to stand for approximately five minutes at a time, had to walk at a slow pace to "push through the pain," and needed to rest after approximately 15 minutes. He was unable to get comfortable while sitting, had to stretch his legs out in front of him, and frequently had to elevate his legs in a recliner. He was unable to sit for longer than 45 minutes to an hour at a time, even while constantly adjusting his position, and he had to get out of the car to stretch after driving for an hour. He occasionally experienced muscle spasms which were often triggered by activity, but which could also be triggered by something as simple as reaching for an object. He would stretch to alleviate the spasms, but it usually took approximately an hour for the spasm to go away. As for his lower extremities, the Veteran experienced radiating pain, tingling, burning, and numbness in his legs which caused him to frequently stumble (at least once per day). He had to "rely on a cane all the time," experienced difficulty getting dressed, and often relied upon his wife's assistance to get dressed. His wife also sometimes helped him shower when he was unable to reach his back to wash. His wife took care of the housework and they hired someone to do the yardwork because he was unable to perform such work. A July 2019 VA neurological examination report indicates that the Veteran experienced low back pain which radiated to the lower extremities and was associated with numbness and tingling. He used pain medication (including Gabapentin) to treat his symptoms. There was moderate intermittent pain, paresthesias/dysesthesias, and numbness in both lower extremities, but no constant pain. Examination revealed that lower extremity muscle strength was all normal (5/5) bilaterally, that there was no muscle atrophy, and lower extremity reflexes were all normal (2+) bilaterally. Sensation was decreased at the thigh/knee and lower leg/ankle bilaterally, but was otherwise normal in the lower extremities bilaterally. There were no trophic changes attributable to peripheral neuropathy. The Veteran walked with a limp due to his back and lower extremity neurological disabilities. Overall, there was moderate incomplete paralysis of the sciatic nerve bilaterally. The Veteran regularly used a brace and cane due to his back disability, but there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. There were no scars related to the Veteran's neurological disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having bilateral lower extremity radiculopathy. This disability impacted his ability to work in that he experienced trouble sitting, standing, walking for prolonged periods (not more than a half an hour at a time), and lifting heavy objects. The Veteran reported during a December 2019 VA back examination that he experienced constant back pain, limited spinal motion, and intermittent muscle spasms. His pain increased with prolonged walking, sitting, and standing, and he was unable to lift more than 5 pounds without significant pain. He used prescription medications and a back brace to treat his symptoms. Moderate to severe flare ups of symptoms occurred 3 to 4 times per week, lasted for several days at a time, sometimes occurred randomly and were also precipitated by weather changes and certain movements, and were alleviated by medication, rest, and time. Examination revealed that the ranges of motion of the thoracolumbar spine were flexion to 60 degrees and extension, right and left lateral flexion, and right and left lateral rotation all to 10 degrees. The ranges of motion themselves did not contribute to functional loss. There was pain associated with all ranges of spinal motion other than left lateral rotation and the pain caused functional loss. There was evidence of pain with weight bearing, but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was not being examined immediately after repetitive use over time or during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time and during flare ups. Pain significantly limited functional ability with repeated use over a period of time and during flare ups and the examiner who conducted the December 2019 examination specified that the ranges of spinal motion with repeated use over time would be flexion to 45 degrees and extension, left and right lateral flexion, and left and right lateral rotation all to 5 degrees. The ranges of spinal motion during flare ups would be flexion to 30 degrees and extension, left and right lateral flexion, and left and right lateral rotation all to 5 degrees. There were muscle spasms which resulted in an abnormal gait or abnormal spinal contour, but there was no guarding. There were no additional factors contributing to disability. Moreover, lower extremity muscle strength was 4/5 on the right and 3/5 on the left, but there was no muscle atrophy. Knee and ankle reflexes were hypoactive (1+) bilaterally and lower extremity sensation was normal bilaterally. Straight leg raise testing was positive bilaterally. Constant pain, intermittent pain, and paresthesias/dysesthesias was moderate in the right lower extremity and severe in the left lower extremity. There was mild numbness in both lower extremities. There were no other signs or symptoms of radiculopathy. Overall, there was moderate right lower extremity radiculopathy and severe left lower extremity radiculopathy involving the femoral and sciatic nerves bilaterally. There was no spinal ankylosis and the Veteran did not have any other neurologic abnormalities or findings related to the thoracolumbar spine. He had IVDS of the thoracolumbar spine, but he did not experience any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician during the previous 12 months. He regularly used a brace and cane for back and knee disabilities, but there was no functional impairment of an extremity such that no effective function remained other that which would have been equally well served by an amputation with prosthesis. There were no scars related to the Veteran's back disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. A diagnosis of IVDS was provided. This disability impacted the Veteran's ability to work in that there was increased and severe pain with prolonged walking, sitting, and standing, and the Veteran was unable to lift more than 5 pounds without significant pain and was unable to walk more than a mile. As a result, his symptoms significantly affected his ability to perform specific job duties in a timely and effective manner. Also, the examiner who conducted the December 2019 examination noted that there was objective evidence of pain on passive range of motion testing and non weight-bearing testing. The report of a VA back examination dated in September 2020 reflects that the Veteran experienced constant back pain that was worse with any weight-bearing and also occurred while he was sleeping. Also, there was constant shooting pain to the lower extremities with associated numbness and tingling. As a result of the back pain, the Veteran experienced difficulty standing (no more than five minutes), difficulty walking for prolonged periods, and difficulty sleeping. He used medications (Gabapentin and Tramadol), a back brace, knee brace, and cane. There were no flare ups of spinal symptoms. Examination revealed that the ranges of spinal motion were flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 15 degrees. The ranges of motion themselves did not contribute to functional loss. There was pain associated with all ranges of spinal motion and the pain caused functional loss. There was tenderness or pain on palpation at the mid to low back area which was 7/10 in intensity and there was evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was not being examined immediately after repetitive use over time and the examination was medically consistent with his statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over a period of time, and the examiner who conducted the September 2020 examination specified that the ranges of spinal motion with repeated use over time would be flexion to 45 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, and left lateral flexion and left and right lateral rotation all to 10 degrees. The Veteran was not being examined during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss during flare ups. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare ups and the ranges of spinal motion would remain the same during flare ups. There was no guarding or muscle spasm of the thoracolumbar spine and there were no additional factors contributing to disability. Moreover, muscle strength associated with hip flexion was 4/5 bilaterally, but was otherwise normal (5/5) in the lower extremities bilaterally and there was no muscle atrophy. Knee and ankle reflexes were normal (2+) bilaterally and sensation was decreased at the upper anterior thigh, thigh/knee, and lower leg/ankle bilaterally and the right foot/toes. Sensation was normal at the left foot/toes. Straight leg raise testing was positive bilaterally and there was moderate intermittent pain, paresthesias/dysesthesias, and numbness in the lower extremities bilaterally. There was no constant pain and no other signs or symptoms of radiculopathy. Overall, there was moderate radiculopathy of the femoral and sciatic nerves bilaterally. There was no spinal ankylosis, the Veteran did not have any other neurologic abnormalities or findings related to the thoracolumbar spine, and he did not have IVDS of the thoracolumbar spine. He regularly used a brace and constantly used a cane for his back disability, but there was no functional impairment of an extremity such that no effective function remained other that which would have been equally well served by an amputation with prosthesis. There were no scars related to the Veteran's back disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having degenerative disc disease L4-5, bilateral lower extremity radiculopathy, and disc herniation. These disabilities impacted his ability to work in that he had a decreased ability to perform activities that required sitting, standing, walking, climbing, lifting, bending, or any other repetitive or prolonged use/activity. The examiner who conducted the September 2020 examination noted that there was objective evidence of pain when the back was used in non weight-bearing and that passive range of motion testing could not be performed or was not medically appropriate. The Veteran reported during a December 2020 VA back examination that he experienced constant back pain, stiffness, shooting pain down both lower extremities, and numbness and tingling in the lower extremities (worse in the right). As a result of his back symptoms, it was difficult to sleep and perform weight-bearing activities. He used muscle relaxants and other prescription medications to treat his symptoms. There were no flare ups of back symptoms. There was functional loss/impairment of the thoracolumbar spine in that the Veteran was unable to bend, lift objects, reach, and stretch. Examination revealed that the ranges of spinal motion were flexion to 50 degrees, extension and right lateral flexion both to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 5 degrees. The ranges of motion themselves did not contribute to functional loss. There was pain associated with all ranges of spinal motion and the pain caused functional loss. There was tenderness or pain on palpation at the mid to low back area and there was evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was not being examined immediately after repetitive use over time and the examination was medically consistent with his statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over a period of time, and the examiner who conducted the December 2020 examination specified that the ranges of spinal motion would remain the same with repeated use over time. The Veteran was not being examined during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss during flare ups. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups and the ranges of spinal motion would remain the same during flare ups. There was no guarding or muscle spasm of the thoracolumbar spine and there were no additional factors contributing to disability. Moreover, muscle strength associated with hip flexion and knee extension was 4/5 bilaterally, but was otherwise normal (5/5) in the lower extremities bilaterally and there was no muscle atrophy. Knee and ankle reflexes were normal (2+) bilaterally and sensation was decreased at the upper anterior thigh bilaterally, the right thigh/knee, the lower leg/ankle bilaterally, and the left foot/toes. Sensation was normal at the right foot/toes and left thigh/knee. Straight leg raise testing was negative bilaterally and there was mild constant pain in the right lower extremity and moderate and mild intermittent pain, paresthesias/dysesthesias, and numbness in the right and left lower extremities, respectively. There were no other signs or symptoms of radiculopathy. Overall, there was moderate radiculopathy of the right femoral and sciatic nerves and mild radiculopathy of the left sciatic nerve. There was no spinal ankylosis, the Veteran did not have any other neurologic abnormalities or findings related to the thoracolumbar spine, and he did not have IVDS of the thoracolumbar spine. He regularly used a brace for his back disability and constantly used a cane for knee disability, but there was no functional impairment of an extremity such that no effective function remained other that which would have been equally well served by an amputation with prosthesis. There were no scars related to the Veteran's back disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having degenerative disc disease L4-5, disc herniation, bilateral lower extremity radiculopathy, and scoliosis. These disabilities impacted his ability to work in that he had a decreased ability to perform activities that required sitting, standing, walking, climbing, lifting, bending, or any other repetitive or prolonged use/activity. The examiner who conducted the December 2020 examination noted that there was objective evidence of pain when the back was used in non weight-bearing and that passive range of motion testing could not be performed or was not medically appropriate. B. Radiculopathy The Veteran's left and right lower extremity radiculopathy of the sciatic nerve are rated under 38 C.F.R. § 4.124A, DC 8520. Under DC 8520, the following ratings apply: a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124A, DC 8520. The left and right lower extremity of the femoral nerve are rated under 38 C.F.R. § 4.124A, DC 8526. Under DC 8526, the following ratings apply: a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 30 percent rating is warranted for severe incomplete paralysis; and a 40 percent rating is warranted for complete paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124A, DC 8526. The rating schedule provides guidance for rating neurological disabilities. With regard to rating neurological disabilities, cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124A. Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran has manifested right and left lower extremity neurological symptoms of the type and extent, frequency, and/or severity, as appropriate to warrant 10 percent ratings, but no higher, for paralysis of the left and right sciatic nerves during the entire period from June 14, 2006 through April 7, 2016. Ratings higher than 20 percent for radiculopathy of the sciatic nerves from April 8, 2016, compensable ratings for radiculopathy of the femoral nerves prior to December 2, 2019, and ratings higher than 20 percent for radiculopathy of the femoral nerves since December 2, 2019 are not warranted. With respect to radiculopathy of the sciatic nerves, the above evidence reflects that during the claim period from June 14, 2006 through April 7, 2016, the Veteran experienced back pain which occasionally radiated down both lower extremities and was occasionally associated with lower extremity numbness and decreased sensation. The Board acknowledges that the Veteran only reported left lower extremity neurological symptoms during the June 2006 VA examination. However, VA treatment records dated prior to the claim period in 2004 confirm that he did experience back pain radiating to both lower extremities at that time, and occasional radiation of back pain to both lower extremities was also reported subsequent to the June 2006 examination. The Veteran did not report any other lower extremity neurological symptoms during the period from June 14, 2006 through April 7, 2016 and examinations conducted during this period revealed normal lower extremity muscle strength and reflexes and only occasional decreased sensation. Overall, in light of the evidence of radiating back pain, occasionally decreased lower extremity sensation, the otherwise normal neurological findings, and the fact that the neurological impairment was wholly sensory, the Board finds that the criteria for 10 percent ratings, but no higher, for left and right lower extremity radiculopathy of the sciatic nerves under DC 8520 (which contemplates mild incomplete paralysis) are warranted during the entire period from June 14, 2006 through April 7, 2016. As for the period since April 8, 2016, the Veteran has experienced back pain which radiates down both lower extremities and bilateral lower extremity numbness, decreased sensation, burning, tingling, and weakness. Lower extremity reflexes have been trace to normal (2+) and ankle jerks have occasionally been absent. The Board acknowledges that left lower extremity muscle strength was 3/5 during the December 2019 examination and that the examiner who conducted that examination concluded that there was severe left lower extremity radiculopathy involving the sciatic nerve. However, other than the muscle strength findings during the December 2019 examination, lower extremity muscle strength has generally been no more impaired than 4/5 bilaterally during this period. Also, the examiners who conducted the April 2016, July 2019, September 2020, and December 2020 examinations all concluded that there was at most moderate incomplete paralysis of the sciatic nerves. While health care professionals' findings as to degree of disability under the Rating Schedule are not binding on the Board, here the "at most moderate" finding it is consistent with the above evidence. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present"). Therefore, in light of the above, the Board finds that the symptoms of the Veteran's lower extremity radiculopathy have more closely approximated moderate incomplete paralysis of the sciatic nerve during the claim period since April 8, 2016, and that the preponderance of the evidence is against a finding that the criteria for a rating in excess in 20 percent for left and right lower extremity radiculopathy of the sciatic nerves have been met or approximated at any point during the claim period since April 8, 2016. With respect to left and right lower extremity radiculopathy of the femoral nerves, there is no evidence of any impairment of the femoral nerves prior to December 2, 2019 and all of the Veteran's lower extremity neurological symptoms were wholly attributed to paralysis of the sciatic nerves during this period. The earliest that it is factually ascertainable that the Veteran's symptoms were partially caused by paralysis of the femoral nerves is December 2, 2019, the date of the December 2019 VA examination during which the examiner concluded that there was left and right lower extremity radiculopathy involving the femoral nerves. Therefore, the preponderance of the evidence is against a finding that the criteria for a compensable rating for left and right lower extremity radiculopathy of the femoral nerves were met or approximated at any point during the claim period from June 14, 2006 through December 1, 2019. As for the period since December 2, 2019, the lower extremity neurological symptoms experienced by the Veteran, as explained above, have included back pain which radiates down both lower extremities and bilateral lower extremity numbness, decreased sensation, burning, tingling, and weakness. Lower extremity reflexes have been trace to normal (2+) and ankle jerks have occasionally been absent. Despite the finding of severe left lower extremity radiculopathy and 3/5 muscle strength on the left during the December 2019 examination, lower extremity muscle strength has generally been no more impaired than 4/5 bilaterally during this period and the examiners who conducted the September 2020 and December 2020 examinations concluded that there was at most moderate incomplete paralysis of the femoral nerves. While health care professionals' findings as to degree of disability under the Rating Schedule are not binding on the Board, here the "at most moderate" finding it is consistent with the above evidence. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present"). Therefore, the Board finds that the symptoms of the Veteran's lower extremity radiculopathy have more closely approximated moderate incomplete paralysis of the femoral nerve during the claim period since December 2, 2019, and that the preponderance of the evidence is against a finding that the criteria for a rating in excess in 20 percent for left and right lower extremity radiculopathy of the femoral nerves have been met or approximated at any point during the claim period since December 2, 2019. C. Degenerative Disc Disease L4-5 The Veteran's service-connected back disability is rated under 38 C.F.R. § 4.71A, DC 5242 as degenerative arthritis. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a , DC 5003. This diagnostic code was not significantly amended by the regulatory changes. Limitation of motion of the thoracolumbar spine is rated under the Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula both prior to and since the regulatory change, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: A 20 percent rating is warranted 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, if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is 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 dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Court has held that a veteran may be entitled to a rating higher than 40 percent under the General Rating Formula if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021). Under DC 5243 both prior to and since the regulatory change, IVDS (preoperatively or postoperatively) is rated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71A, DC 5243. Under the criteria for rating IVDS, the following ratings apply: a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71A, DC 5243. For purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a , DC 5243, Note (1). Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran has manifested thoracolumbar spine symptoms of the type and extent, frequency, and/or severity, as appropriate, to warrant a 40 percent rating, but no higher, during the entire claim period from June 14, 2006, under the criteria in effect both prior to and since the regulatory change. The above evidence reflects that the Veteran experiences pain, tenderness, stiffness, weakness, muscle spasms, guarding, an impaired gait, and significantly impaired ranges of spinal motion due to his service-connected back disability. He has reported flare ups of back symptoms at various times throughout the claim period, his ability to perform various physical activities (e.g., standing, sitting, lifting, reaching, walking, bending) has been significantly impaired, he reported during the March 2015 Board hearing that he spent a significant amount of time in bed due to his back disability, and he reported in his February 2019 statement that he was unable to bend very far without experiencing muscle spasms. Forward flexion was to 85 degrees during the June 2006 examination and to 70 degrees during the August 2019 examination. The examiner who conducted the June 2006 examination was unable to provide an accurate assessment of the functional limitations caused by the Veteran's back disability (including during flare ups), the extent of additional functional impairment could not be assessed during the September 2007 examination because the Veteran was in a wheelchair, and the examiner who conducted the August 2010 examination did not provide any information concerning functional impairment with repeated use over time or during flare ups. During the April 2016 examination, forward flexion was to 35 degrees and the examiner noted that this was the range of motion with repeated use over time and during flare ups because the examination was being conducted following repeated use and during a flare up. Flexion was to 60 degrees during the December 2019 examination, but the examiner noted that pain would limit flexion to 30 degrees during flare ups. Also, flexion was to 50 degrees during the September and December 2020 examinations and the examiner who conducted the September 2020 examination noted that pain would limit flexion to 45 degrees with repeated use over time. The Veteran's representative has contended on several occasions, including in an April 2021 statement, that a 40 percent rating is warranted for the Veteran's back disability during the entire claim period since June 14, 2006. Specifically, he contends that this rating would most appropriately reflect not only the decreased range of spinal motion caused by the Veteran's back disability, but would also encompass his inability to perform normal working movements of his body and the significant limitations on his ability to perform various normal physical activities (as noted above). The Board also notes that the Veteran has used various prescription medications during the claim period to treat his back symptoms and that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In other words, the Board cannot consider the ameliorative effects of medication unless medication is referenced in the applicable diagnostic code. That is precisely the situation in this case. The Veteran's medication has occasionally ameliorated the effects of his back disability. In light of the significant functional limitations caused by the Veteran's back disability, the fact that the June 2006, September 2007, and August 2010 examinations did not provide adequate information as to the extent of additional functional loss following repeated use over time and during flare ups, and not taking into account the ameliorative effects of the Veteran's medication, the Board agrees with the Veteran's representative and finds that the symptoms of the Veteran's service-connected back disability have most closely approximated the criteria for a 40 percent rating under the General Rating Formula (which contemplates limitation of flexion of the thoracolumbar spine to 30 degrees or less) during the entire claim period since June 14, 2006. The Board also finds that a rating higher than 40 percent is not warranted at any time during the claim period. Specifically, no spinal ankylosis was noted during any of the examinations conducted during the claim period. Also, despite the significantly limited ranges of spinal motion during the claim period, the Board finds that even considering back pain, flare ups, and other functional factors, the Veteran has not experienced the functional equivalent of spinal ankylosis (as defined above) at any time during the claim period. In other words, a preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's back symptoms have not been shown to be so disabling to actually or effectively result in fixation of the entire thoracolumbar spine in flexion or extension with any of the additional symptoms or limitations listed in Note (5) of the General Rating Formula. Therefore, a rating in excess of 40 percent for degenerative disc disease L4-5 is not warranted at any time during the claim period. Moreover, the Board acknowledges that the Veteran has been diagnosed as having IVDS during the claim period and that he has reported a significant amount of time spent in bed due to his back disability. However, he has not experienced incapacitating episodes of IVDS as defined above (i.e., bed rest prescribed by a physician and treatment by a physician) at any time during the claim period. Therefore, a higher rating is not warranted on the basis of IVDS at any time during the claim period. D. Additional Considerations As a final matter, the Board finds that, in conjunction with the higher rating matters discussed herein, other than the issues of entitlement to a TDIU and SMC which are discussed below, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). II. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. § § 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned 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 (including 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. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31. Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU due to service-connected disabilities, prior to April 8, 2016 Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the Veteran's service-connected disabilities precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him during the period from October 27, 2007 (but no earlier) through April 7, 2016. As explained above, the Veteran's TDIU claim is on appeal as part and parcel of his claim for an increased rating for his service-connected back disability. Therefore, the claim period for the TDIU matter dates back to the June 14, 2006 receipt of his increased rating claim. Harper, 30 Vet. App. at 361-62. The Board points out that the Veteran's appeal for higher initial ratings for left and right lower extremity radiculopathy also only dates back to the Veteran's June 14, 2006 claim. From June 14, 2006 through April 7, 2016, the Veteran was service-connected for the following disabilities: adjustment disorder with mixed anxiety and depressed mood, now rated 70 percent disabling (see a December 2020 Board decision); degenerative disc disease L4-5, now rated 40 percent disabling; left lower extremity radiculopathy of the sciatic nerve, now rated 10 percent disabling; right lower extremity radiculopathy of the sciatic nerve, now rated 10 percent disabling; tinnitus, rated 10 percent disabling; bilateral hearing loss, rated noncompensable; and erectile dysfunction, rated noncompensable, from March 27, 2015 through April 7, 2016. The Veteran's combined disability rating is now 90 percent during this entire period. The remaining question is whether his service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him during this period. In addition to the evidence set forth above, a January 1972 examination report from G.B. Barnes, M.D., the reports of VA examinations dated in January 1973 and February 1974, an August 1974 letter from D. Koons, M.D., a December 1978 VA examination report, a February 1984 letter from R.H. Gonzalez, M.D., the reports of VA examinations dated in September 1986, March 1999, March 2003, and March 2007, the Veteran's testimony during the March 2015 Board hearing, his February 2019 VA Form 21-8940 and attached statement, and his Social Security Administration (SSA) records indicate that he completed one year of college courses in electrical work, was employed as an electrician/electrician's apprentice and construction worker following service, and that he worked as a mail carrier with the Postal Service from 1983 to September 11, 2007, at which time he was injured in a fall at work. He acknowledged that he made some marginal earnings in 2008, but this was likely the result of "cashing in vacation time" because he was "certainly not working at that time." His SSA earnings information confirms that he was last gainfully employed in 2007 and did not receive gainful earnings in 2008. He was awarded SSA disability benefits on the basis of shoulder impingement syndrome and cervical disc herniation. While employed, the Veteran's service-connected back disability significantly affected his work because he experienced constant back pain which radiated to his right testicle, buttock, and leg. In order to treat the pain, he would sometimes ice his back while performing his route at work and he also treated his symptoms with prescription pain medications, to include hydrocodone and gabapentin. These medications interfered with his concentration at work and caused him to have difficulty with spelling. He sometimes wore a back brace, was constantly shifting his weight from side to side while standing, and was unable to lift heavy packages and needed the assistance of others to deliver such items. He sometimes experienced flare ups of severe back pain, which caused him to miss work from time to time. His back disability caused difficulty with walking and frequent stumbles, and contributed to the fall that ended his employment. He also experienced problems at work due to his hearing loss and tinnitus in that he had difficulty understanding people, often had to ask others to repeat themselves, and would often miss words in conversations. In May 2019, vocational consultant M. La Raia, M.A., L.R.C., CCM reviewed the Veteran's claims file and interviewed the Veteran. The vocational consultant described the symptoms and functional limitations (e.g., sitting limited to 10 minutes at a time, standing limited to 5 minutes at a time, walking limited to 15 minutes at a time with a slow pace, and limitations with driving, bending/reaching, lifting, and using stairs) caused by the Veteran's service-connected back disability, lower extremity neurological disabilities, hearing loss, and tinnitus. The vocational consultant also discussed the Veteran's educational and employment history and the problems he experienced while employed due to his disabilities. Overall, he concluded that the Veteran has likely ("at least as likely as not") been "unable to secure and follow substantially gainful employment due to his service-connected back condition and bilateral hearing loss and tinnitus since at least September 2007, when he last worked." The vocational consultant explained, in pertinent part, that the pain and limitations in sitting, standing, walking, bending, and lifting caused by the Veteran's back disability were long standing and clearly recorded within his treatment records. Documentation relative to his back disability suggested a worsening condition over the many years of suffering that he had endured. The Veteran's limitations were inconsistent with the exertional demands of even non-physical work, as such work involves sitting "most of the day" and the Veteran had great difficulty with remaining in a seated position for longer than one hour. Also, he would be considered a fall risk due to the instability caused by his back and lower extremity neurological disabilities. The exertional demands of the Veteran's prior work experience far exceeded those of occupations at the non-physical level. Even unskilled forms of work at the non-physical level would not improve the Veteran's employability because such settings would be less tolerant with respect to time off task and absenteeism. The evidence reflected that both the Veteran's absenteeism and time off task would exceed such employers' tolerances, due to his service-connected disabilities. Overall, it was likely ("at least as likely as not") that the Veteran had been unable to secure and follow substantially gainful employment, including non-physical unskilled work, due to his service-connected disabilities since at least September 2007. An August 2019 "Request to Employment Information in Connection with Claim for Disability Benefits" form (VA Form 21-4192) from the Postal Service, the report of a September 2019 VA psychiatric examination, and an October 2019 VA Form 21-4192 from the United States Office of Personnel Management reflects that the Veteran was employed from 1984 to October 14, 2008 as a letter carrier. Although his employment ended on October 14, 2008, he last worked on October 26, 2007. In addition to his back disability, lower extremity neurological disability, hearing loss, and tinnitus, he also experienced anxiety, depression, irritability, chronic sleep impairment, difficulty trusting others/suspiciousness, and difficulty in establishing and maintaining effective work and social relationships due to his service-connected psychiatric disability. In sum, the evidence indicates that the Veteran has completed no more than 1 year of college, that his employment experience involves physical work as an electrician apprentice, a construction worker, and a letter carrier with the Postal Service and that he experienced difficulties with his prior employment due to his service-connected back disability, lower extremity neurological disability, hearing loss, and tinnitus. He has reported that he stopped working on September 11, 2007, but information from his employer and the Office of Personnel Management confirm that he stopped working no earlier than October 26, 2007. He was not engaged in any gainful employment during the period from October 26, 2007 through April 7, 2016. His medical records and lay statements reflect significant impairments from his service-connected disabilities (including, but not limited to, back and lower extremity pain, weakness, muscle spasms, significantly limited motion, stiffness, a limited ability to perform various physical activities, hearing loss, tinnitus, anxiety, depression, and irritability) that would have prevented him from performing any type of gainful employment consistent with his education and physical occupational experience. The above discussion of the severity of the symptoms of the Veteran's service-connected disabilities and his educational and occupational experience, to include the opinions of record, reflects that the preponderance of the evidence is in favor of a conclusion that he was unable to secure and follow substantially gainful employment as a result of his service-connected disabilities during the period from October 27, 2007 (the day after his gainful employment ended) through April 7, 2016. This is the earliest that it is factually ascertainable that his gainful employment ended. Hence, entitlement to a TDIU, from October 27, 2007 through April 7, 2016, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. III. SMC SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Pursuant to 38 C.F.R. § 3.350 (b)(3) and (4), the criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance, including a determination that he is permanently bedridden, are contained in 38 C.F.R. § 3.352 (a). That regulation provides that the following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through the loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. "Bedridden" is defined as that condition, which, through its essential character, actually requires that a claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions that a veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that his condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 C.F.R. § 3.352 (a). Entitlement to SMC based on the regular need for the aid and attendance of another person The Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether the Veteran requires assistance in accomplishing the activities of daily living and is unable to protect himself from the hazards and dangers of his daily environment on account of his service-connected disabilities. In addition to the evidence set forth above, the report of a February 2021 aid and attendance examination (VA Form 21-2680) indicates that the Veteran was not hospitalized. He was able to feed himself and prepare his own meals, but he required assistance in bathing and tending to other hygiene needs because of limited range of motion of the neck, arms, and legs. He was not legally blind, did not require nursing home care or medication management, and had the mental capacity to manage his benefit payments or to direct someone else to do so. Examination revealed that the Veteran's posture and general appearance were normal. He had a limited range of motion of the neck and bilateral upper and lower extremities, but was able to ambulate with a cane. He was able to leave his home on a daily basis for up to several hours at a time. He was able to walk up to 5 or 6 blocks at a time with the assistance of aids or another person. The Board acknowledges, at the outset, that the Veteran has not suffered the anatomical loss or loss of use of both feet or one hand and one foot, and is not service-connected for blindness in both eyes. Also, he experiences impairment in his mobility due to symptoms caused by some non service-connected disabilities. Nevertheless, the evidence indicates that he also requires assistance with dressing/undressing and bathing due to limited mobility caused by his service-connected back and lower extremity neurological disabilities. In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran is in need of regular aid and attendance of another person due to the manifestations of his service-connected back and lower extremity neurological disabilities (particularly limited mobility which impairs his ability to dress/undress and bathe), which require care or assistance on a regular basis to perform some daily activities. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran entitlement to SMC based on the regular need for the aid and attendance of another person is warranted. (continued on next page) SMC based on housebound status is a lesser benefit than SMC at the aid and attendance rate. See 38 U.S.C. § 1114 (l), (s); 38 C.F.R. § 3.350 (i).Thus, the award of SMC at the aid and attendance rate renders the housebound issue moot. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.