Citation Nr: 21031021 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 05-23 583 DATE: May 20, 2021 ORDER A rating in excess of 20 percent for intervertebral disc syndrome of the lumbar spine for the period from June 7, 2004, to May 3, 2010, is denied. A 40 percent rating for intervertebral disc syndrome of the lumbar spine for the period beginning May 4, 2010, is granted. A rating in excess of 40 percent for intervertebral disc syndrome of the lumbar spine for the period beginning May 4, 2010, is denied. A compensable rating for limitation of left hip flexion for the period from December 24, 2015, to October 19, 2016, is denied. A 20 percent rating for limitation of left hip flexion for the period from October 20, 2016, to December 18, 2018, is granted. A rating in excess of 20 percent rating for limitation of left hip flexion for the period from October 20, 2016, to December 18, 2018, is denied. A compensable rating for limitation of left hip flexion for the period beginning December 19, 2018, is denied. A rating in excess of 20 percent for limitation of left hip abduction for the period from December 24, 2015, to December 18, is denied. A compensable rating for limitation of left hip abduction for the period beginning December 19, 2018, is denied. A rating in excess of 10 percent for limitation of the extension of the left hip is denied. An initial rating in excess of 20 percent for peripheral neuropathy of the sciatic nerve of the left lower extremity is denied. An initial rating in excess of 20 percent for peripheral neuropathy of the sciatic nerve of the right lower extremity is denied An initial rating in excess of 20 percent for peripheral neuropathy of the femoral nerve of the left lower extremity is denied. An initial rating in excess of 20 percent for peripheral neuropathy of the femoral nerve of the right lower extremity is denied. A compensable initial rating for peripheral neuropathy of the obturator nerve of the left lower extremity is denied. A compensable initial rating for peripheral neuropathy of the obturator nerve of the right lower extremity is denied. A compensable initial rating for peripheral neuropathy of the external cutaneous nerve of the left lower extremity is denied. A compensable initial rating for peripheral neuropathy of the external cutaneous nerve of the right lower extremity is denied. A compensable initial rating for peripheral neuropathy of the ilio-inguinal nerve of the left lower extremity is denied. A compensable initial rating for peripheral neuropathy of the ilio-inguinal nerve of the right lower extremity is denied. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to July 19, 2005, is denied. FINDINGS OF FACT 1. For the period from June 7, 2004, to May 3, 2010, the evidence showed that forward flexion of the thoracolumbar spine was not limited to 30 degrees or less; there was not favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least four two weeks but less than six weeks during a twelve month period; and there were no objective neurological abnormalities associated with the lumbosacral spine other than peripheral neuropathy of the lower extremities. 2. Forward flexion of the thoracolumbar spine was limited to 30 degrees or less from May 4, 2010. 3. For the period beginning May 4, 2010, there was not unfavorable ankylosis of the entire thoracolumbar spine; incapacitating episodes of IVDS having a total duration of at least six weeks during a twelve month period; or objective neurological abnormalities associated with the lumbosacral spine other than peripheral neuropathy of the lower extremities. 4. For the period from December 24, 2015, to October 19, 2016, and the period beginning December 19, 2018, flexion in the left hip was not limited to 45 degrees. 5. Resolving all reasonable doubt in the Veteran's favor, for the period from October 20, 2016, to December 18, 2018, flexion in the left hip was limited to, at worst, 30 degrees. 6. The highest assignable rating for limitation of abduction of the left hip under the Schedule for Rating Disabilities, 38 C.F.R. Part 4 (Ratings Schedule) is 20 percent. 7. For the period beginning December 19, 2018, abduction of the left hip was not lost beyond 10 degrees. 8. The highest assignable rating for limitation of extension of the hip under the Ratings Schedule is 10 percent. 9. No more than moderate incomplete paralysis is shown in the sciatic or femoral nerves of the left or right lower extremity. 10. Severe to complete paralysis is not shown in the external cutaneous or ilio-inguinal nerve of the left or right lower extremity. 11. The Veteran reports education through one year of college and work experience as a car salesman; he stated that he became too disabled to work in June 2005. 12. Prior to July 19, 2005, the Veteran was not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities with consideration of his educational background and work history. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for IVDS of the lumbar spine for the period from June 7, 2004, to May 3, 2010, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243 (2020). 2. The criteria for a 40 percent rating for IVDS of the lumbar spine for the period beginning May 4, 2010, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, DC 5243 (2020). 3. The criteria for a rating in excess of 40 percent for IVDS of the lumbar spine for the period beginning May 4, 2010, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, DC 5243 (2020). 4. The criteria for a compensable rating for limitation of left hip flexion for the period from December 24, 2015, to October 19, 2016, and the period beginning December 19, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, DCs 5010, 5252 (2020). 5. The criteria for a 20 percent rating for limitation of left hip flexion for the period from October 20, 2016, to December 18, 2018, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, DCs 5010, 5252 (2020). 6. The criteria for a rating in excess of 20 percent rating for limitation of left hip flexion for the period from October 20, 2016, to December 18, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, DCs 5010, 5252 (2020). 7. A rating in excess of 20 percent for limitation of left hip abduction for the period from December 24, 2015, to December 18, 2018, cannot be assigned under the Ratings Schedule. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, DCs 5010, 5253 (2020). 8. The criteria for a compensable rating for limitation of left hip abduction for the period beginning December 19, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a) (2012); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, DCs 5010, 5253 (2020). 9. A rating in excess of 10 percent for limitation of the extension of the left hip cannot be assigned under the Ratings Schedule. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, DCs 5010, 5251 (2020). 10. The criteria for an initial rating in excess of 20 percent for peripheral neuropathy of the sciatic nerve of the left or right lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520 (2020). 11. The criteria for an initial rating in excess of 20 percent for peripheral neuropathy of the femoral nerve of the left or right lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8526 (2020). 12. The criteria for a compensable initial rating for peripheral neuropathy of the obturator nerve of the left or right lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8528 (2020). 13. The criteria for a compensable initial rating for peripheral neuropathy of the external cutaneous nerve of the left or right lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8529 (2020). 14. The criteria for a compensable initial rating for peripheral neuropathy of the ilio-inguinal nerve of the left or right lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8530 (2020). 15. The criteria for TDIU prior to July 19, 2005, have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, §§ 3.341, 4.16(b), 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December1985 to February 1988. This case has been remanded by the Board of Veterans' Appeals (Board) on multiple occasions beginning in October 2008 and most recently in July 2019. This appeal arises from a December 2004 rating decision that assigned a 20 percent rating for a disability listed at that time as lumbar muscle strain with history of left leg sciatica effective from the date of receipt of the August 31, 2004, claim for increase which gave rise to this appeal. This rating decision also continued a 10 percent rating for a right hip injury and found that since there was no limitation of motion in the left hip, it was a non-compensable disability and would be considered to be a part of the rating assigned for the right hip injury. The appeal also arises from a February 2006 rating decision that, in pertinent part, denied a claim for TDIU. Another rating decision completed in November 2006 while this case was on appeal assigned a separate 10 percent rating for a left hip injury effective from the August 31, 2004, claim for increase. Thereafter, a March 2016 rating decision assigned separate evaluations for limitation of abduction and flexion of the left hip and, as noted by the Board in a September 2016 remand, the propriety of these ratings were before the Board as part and parcel of the August 31, 2004, claim for an increased rating for a left hip disability which gave rise to this appeal. A December 2018 rating decision recharacterized the service-connected lumbar spine disability as IVDS and assigned an increased rating of 40 percent for such disability effective from October 9, 2018. This rating decision also granted service connection for peripheral neuropathy of the sciatic, femoral, obturator, external cutaneous, and ilio-inguinal nerves of each lower extremity as secondary to the service connected IVDS, and the propriety of the ratings assigned for these disabilities were matters listed as being part of the Veteran's appeal on the most recent Board remand completed in July 2019. The private treatment records requested to be obtained in the July 2019 remand have been associated with the claims file and were referenced in the January 2021 supplemental statement of the case. The adjudication of the claim for TDIU prior to July 19, 2005, requested in the July 2019 remand has also been accomplished, and this case is now ready for appellate review. I. Increased Rating Claims A. General Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The effective date of an increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. B. IVDS of the Lumbar Spine Rating Criteria For disabilities evaluated on the basis of limitation of motion, VA is required 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 determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, 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. 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 (2006). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, 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. Traumatic arthritis is rated as for degenerative arthritis. DC 5010. The General Rating Formula for Diseases and Injuries of the Spine provides that for DCs 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the cervical spine, forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 30 percent is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine that is not greater than 170 degrees, or if the spine disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The General Formula also includes the following notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be assigned based either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method results in the higher evaluation. 2. Analysis As indicated above, a December 2018 rating decision recharacterized the service lumbar spine disability as IVDS and assigned an increased rating of 40 percent for this disability effective from October 9, 2018. The service-connected lumbar spine disability may be rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS, whichever method results in the higher evaluation. As the effective date for this increase was not made from the date of the claim which gave rise to this appeal, the matters for consideration with respect to the lumbar spine disability are whether a rating in excess of 20 percent for this disability may be assigned for the period from June 7, 2004, to October 8, 2018, (an earlier effective date of June 7, 2004, for the 20 percent rating for the lumbar spine disability was awarded by an October 2008 rating decision pursuant to Board decision issued earlier that month that found that a 20 percent rating was warranted for this disability effective from June 7, 2004) and whether a rating in excess of 20 percent for this disability may be assigned for the period beginning October 9, 2018. AB v. Brown, 6 Vet. App. 35 (1993). As an initial matter, the Board found that the 20 percent rating for the service connected lumbar spine disorder was warranted effective from June 7, 2004, based on a report from VA outpatient treatment on that date which noted tenderness in lumbar spine with pain on straight leg raising testing on the left side and diagnosed the Veteran with lumbar spondylosis with neuritis of the left side. A rating in excess of 20 percent for the service connected lumbar spine for the period from June 7, 2004, to October 8, 2018, would require clinical evidence during this period demonstrating forward flexion of the thoracolumbar spine that was limited to 30 degrees or less; favorable ankylosis of the entire lumbosacral spine; episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks but less than 6 weeks during a 12 month period; or objective neurologic abnormalities aside from that contemplated by the ratings assigned for the peripheral neuropathy of the lower extremities granted as secondary to the service connected lumbar spine disability, the propriety of which will be addressed in this decision below. Applying the criteria above to the clinical record for the first time period in question. Thoracolumbar flexion was measured to 40 degrees at a December 2004 VA examination. A December 2005 VA examination showed thoracolumbar flexion to 55 degrees and a March 2007 VA examination showed thoracolumbar flexion to 45 degrees. A May 4, 2010, VA examination of the spine showed 28 degrees of thoracolumbar flexion and. Thoracolumbar flexion was not measured at a December 2015 VA examination and a VA clinical note dated in earlier in that month noted that thoracolumbar flexion testing could not be accomplished due to pain. An October 2016 VA examination showed 30 degrees of thoracolumbar flexion. In short, based on the thoracolumbar flexion shown at the May 4, 2010, and October 2016 VA examinations to 30 degrees or less, and the fact that thoracolumbar flexion could not be measured due to pain in December 2015, the undersigned finds that the criteria for a 40 percent rating for IVDS are met from May 4, 2010. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400, 4.71a, DC 5293. With respect to a rating in excess of 20 percent prior to May 4, 2010, as set forth above, thoracolumbar flexion was beyond 30 degrees to 40 degrees at the December 2004 VA examination, 55 degrees at the December 2005 VA examination, and 45 degrees at the March 2007 VA examination. These examinations also did not reflect favorable ankylosis of the entire lumbosacral spine; episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during a 12 month period; or objective neurologic abnormalities in addition to peripheral neuropathy of the lower extremities. As there is otherwise no clinical evidence of the criteria for a rating in excess of 20 percent for the service connected IVDS of the lumbar spine for the period from June 7, 2004, to May 3, 2010, a rating in excess of 20 percent cannot be assigned for this disability during this period. Id. As for a rating in excess of 40 percent for IVDS of the lumbar spine for the period beginning May 4, 2010, such would require evidence during the period of unfavorable ankylosis of the entire thoracolumbar spine; incapacitating episodes of IVDS having a total duration of at least six weeks during a twelve month period; or objective neurological abnormalities associated with the lumbosacral spine other than peripheral neuropathy of the lower extremities. No ankylosis of the thoracolumbar spine was shown at the May 2010 VA examination and this examination noted that there were no incapacitating episodes of spine disease. December 2015 and October 2016 VA examinations of the thoracolumbar spine showed no ankylosis and no neurologic abnormalities associated with the lumbar spine disability such as bowel or bladder problems or pathologic reflexes. These examinations also noted that the Veteran did not have IVDS. A November 2018 VA examination of the thoracolumbar spine showed no ankylosis and no neurologic abnormalities such as bowel or bladder problems or pathologic reflexes. This examination did indicate the Veteran had IVDS, but that such had not resulted in any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. The findings as listed immediately above do not warrant a rating in excess of 40 percent of the service-connected lumbar spine disability. There otherwise being no clinical evidence of record for the period beginning May 4, 2010, demonstrating the manifestations required for a rating in excess of 40 percent for the service connected IVDS of the lumbar spine, a rating in excess of 40 percent rating for this disability for the period beginning May 4, 2010, cannot be assigned. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.71a, DC 5243. With respect to the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016), the November 2018 VA examiner noted that there was no evidence of pain on passive range of motion and non-weight bearing testing of the back. The 40 percent rating currently assigned rating for IVDS of the lumbar spine is the highest assignable rating for the lumbar spine on the basis of loss of motion, and there is otherwise no reason to suggest that a remand of this case for further range of motion findings pursuant to Correia would be required or justified. As for the findings with respect to flare-ups required by Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Veteran denied having flare-ups in the lumbar spine at the October 2010, December 2015, and October 2016 VA examinations. At the November 2018 VA examination, the Veteran described flare-ups in the lumbar spine in his own words of increased pain with numbness, tingling, and burning sensations. The clinician noted that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during a flare-up. In short, the undersigned finds any impairment resulting from the flare-ups described at the November 2018 VA examination to be adequately reflected by the compensation for IVDS of the lumbar spine to which the Veteran has been found to be entitled in this decision. With regard to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40; 4.45 and the holdings in DeLuca and Mitchell, the reports from the examinations discussed above document consideration of these principles, to include repetitive motion. In particular, the October 2010 VA examination showed no additional loss of motion on repetitive thoracolumbar spine motion in any direction aside from 5 to 7 degrees of extension and the December 2015, October 2016, and November 2018 VA examinations of the lumbar spine noted no loss of motion or other functioning with repetitive use. There is otherwise no clinical evidence indicating that increased compensation would be warranted for IVDS of the lumbar spine with consideration of the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40; 4.45 and the holdings in DeLuca and Mitchell. C. Left Hip 1. Rating Criteria Normal hip motion is from 0 degrees of extension to 125 degrees of flexion and 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Limitation of extension of the thigh to 5 degrees warrant a 10 percent disability rating. 38 C.F.R. § 4.71a, DC 5251. The only rating assignable for limitation of extension of the thigh under DC 5251 is 10 percent. Limitation of flexion of the thigh to 45 degrees warrants a 10 percent disability rating. 38 C.F.R. § 4.71a, DC 5252. Limitation of flexion of the thigh to 30 degrees warrants a 20 percent disability rating. Id. Limitation of flexion of the thigh to 20 degrees warrants a 30 percent disability rating. Id. A 20 percent rating is warranted for a loss of abduction in the thigh beyond 20 degrees. 38 C.F.R. § 4.71a, DC 5253. The only rating assignable for limitation of abduction of the thigh under DC 5253 is 20 percent. Id. Hyphenated Diagnostic Code numbers reflect the assignment of a rating under the first DC number using the criteria of the second DC. See 38 C.F.R. § 4.27. 2. Analysis Service-connected residuals of a left hip injury with traumatic arthritis are rated under three separate diagnostic codes. First, ratings on the basis of limitation of flexion of the left hip are assigned under DCs 5010-5252 as follows: 0 percent from December 24, 2015, to October 19, 2016; 10 percent for the period from October 20, 2016, to December 18, 2018; and 0 percent for the period beginning December 19, 2018. As an initial matter, the undersigned notes that the 10 percent rating under DCs 5010-5252 was assigned effective from October 20, 2016, following a VA examination of the left hip that showed left hip flexion of 35 degrees with reduced flexion to 30 degrees following repetitive motion. As for whether a compensable rating for loss of left hip flexion is warranted for the period from December 24, 2015, to October 19, 2016, such would require clinical evidence during this period demonstrating limitation of left hip flexion to 45 degrees. See 38 C.F.R. § 4.71a, DC 5252. A VA examination of the left hip conducted on December 24, 2015, showed left hip flexion will beyond 45 degrees to 80 degrees, and as there is otherwise no clinical evidence dated during the period from December 24, 2015, to October 19, 2016, demonstrating a loss of left flexion to 45 degrees, a compensable rating for loss of flexion of the left hip for this period cannot be assigned. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.71a, DCs 5010, 5252. As indicated above, the 10 percent rating assigned for limitation of left hip flexion was based on the range of motion testing findings from a VA examination of the left hip conducted on October 20, 2016. Loss of flexion of the thigh to 30 degrees warrants a 20 percent rating under DC 5252, and given the loss of left hip flexion to 30 degrees following repetitive use at this examination and the initial motion testing demonstrating a loss of left hip flexion (35 degrees) that approximated 30 degrees, the Board will resolve all reasonable doubt in the Veteran's favor and conclude that the criteria for a 20 percent rating for loss of flexion in the left hip for the period from October 20, 2016, to December 18, 2018 are met. Id. As the clinical record for the period from October 20, 2016, and December 19, 2018, does not reflect any evidence of flexion of the left hip being limited to 20 degrees, which is required for a 30 percent rating for loss of flexion under DC 5252, a rating in excess of 0 percent for limitation of flexion of the left hip during this period cannot be assigned. Id. Finally with respect to a compensable rating for loss of left hip flexion for the period beginning December 19, 2018, the undersigned notes that a noncompensable rating for loss of left hip flexion was assigned on the basis of a report from a November 2018 VA examination of the left hipreceived on December 19, 2018that demonstrated full flexion in the left hip, to include after repetitive use. As a review of the other clinical evidence for the period beginning December 19, 2018, does not otherwise reflect that left hip flexion has been limited to 45 degrees, a compensable rating for loss of flexion of the left hip cannot be assigned for the period beginning December 19, 2018. Id. The service connected left hip disability is also rated as 10 percent disabling under DCs 5010-5251 on the basis of limitation of extension. The highest assignable rating for limitation of extension under DC 5251 is 10 percent, and there is otherwise nothing in the record to suggest, nor is it claimed, that extraschedular consideration for impairment due to limitation of left hip extension is warranted. As such, a rating in excess of 10 percent of limitation of extension of the left hip must be denied as a matter of law. 38 C.F.R. § 4.71a, DC 5251. The final diagnostic codes under which the service connected left hip disability is rated are DCs 5010-5253 on the basis of limitation of abduction. The 20 percent rating assigned for such impairment for the period from December 24, 2015, to December 18, 2018, is the highest assignable rating for limitation of abduction under DC 5253. As such, and as there is otherwise nothing in the record to suggest, nor is it claimed, that extraschedular consideration for impairment due to limitation of left hip abduction is warranted, a rating in excess of 20 percent of limitation of abduction of the left hip for the period from December 24, 2015, to December 18, 2018, must be denied as a matter of law. 38 C.F.R. § 4.71a, DC 5253. As for a compensable rating for loss of left hip abduction for the period beginning December 19, 2018, a noncompensable rating for loss of left hip abduction was assigned on the basis of the report from the aforementioned November VA examination of the left hip received on December 19, 2018, that demonstrated full abduction in the left hip, to include after repetitive use. As a review of the other clinical evidence for the period beginning December 19, 2018, does not otherwise reflect that left hip abduction has been limited beyond the 10 degrees as required for a compensable rating for loss of abduction under DC 5253, a compensable rating for loss of abduction of the left hip cannot be assigned for the period beginning December 19, 2018. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 4.71a, DCs 5010, 5253. With respect to the requirements of Correia, the November 2018 VA examiner noted that there was no evidence of pain on passive range of motion and non-weight bearing testing of the left hip, and there is otherwise no reason to suggest that a remand of this case for further range of motion findings pursuant to Correia would be required or justified, particularly given the duration of the current appeal. As for the findings with respect to flare-ups required by Sharp, the Veteran denied having flare-ups in the left hip at the December 2015, October 2016, and November 2018 VA examinations, and there is otherwise no indication that additional compensation for his service connected left hip residuals to which the Veteran has been found to be entitled in this decision would be warranted on the basis of flare-ups. Finally, with regard to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40; 4.45 and the holdings in DeLuca and Mitchell, the reports from the examinations discussed above document consideration of these principles. In particular, the reports from the VA examination reports as set forth above have noted the degree to which loss motion in the left hip has been affected by repetitive use. There is otherwise no clinical evidence indicating that increased compensation would be warranted for the service connected left hip residuals with consideration of the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40; 4.45 and the holdings in DeLuca and Mitchell. D. Lower Extremity Peripheral Neuropathy 1. Rating Criteria In rating disability involving injury to the peripheral nerves and their residuals, attention is to be given to the site and character of injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuritis of the peripheral nerves, 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 rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve characterized usually 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. The term incomplete paralysis, with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied 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. Under 38 C.F.R. § 4.124a, DC 8520, a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve and a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. Under 38 C.F.R. § 4.124a, DC 8526, a 20 percent rating is assigned for moderate incomplete paralysis of the femoral nerve and a 30 percent rating is assigned for severe incomplete paralysis of the femoral nerve. A compensable rating of 10 percent is warranted for severe to complete paralysis of the obturator, external cutaneous, and ilio-inguinal nerves under, respectively, 38 C.F.R. § 4.124a, DCs 8528, 8529, and 8530. 2. Analysis As noted previously, an October 9, 2018, rating decision granted service connection for peripheral neuropathy of the sciatic, femoral, obturator, external cutaneous, and ilio-inguinal nerves of each lower extremity as secondary to the service connected IVDS. This rating decision assigned 20 percent ratings for peripheral neuropathy of the sciatic and femoral nerves of each lower extremity under, respectively, DCs 8520 and 8526. Noncompensable ratings were assigned by this decision for peripheral neuropathy of the obturator, external cutaneous, and ilio-inguinal nerves of each lower extremity under, respectively, DCs 8528, 8529, and 8530. Ratings in excess of 20 percent for peripheral neuropathy of the sciatic and femoral nerves of each lower extremity under DCs 8520 and 8526 would require more than moderate incomplete paralysis of the nerve in question. A November 2018 VA peripheral nerves examination showed moderate incomplete paralysis of the sciatic and femoral nerves of each lower extremity, and as there is otherwise no evidence of more than moderate incomplete paralysis of the sciatic and femoral nerves of either lower extremity, ratings in excess of 20 percent for peripheral neuropathy of the sciatic and femoral nerves of each lower extremity cannot be assigned. 38 C.F.R. § 4.124a, DCs 8520, 8526. The November 2018 VA peripheral nerves examination also showed mild incomplete paralysis in the obturator, external cutaneous, and ilio-inguinal nerves of each lower extremity, and as there is otherwise no clinical evidence of the severe to complete paralysis required for a compensable rating for these nerves, a compensable ratings for peripheral neuropathy of these nerves in either lower extremity cannot be assigned. 38 C.F.R. § 4.124a, DCs 8528, 8529, 8530. E. Final Considerations In making the above rating determinations, the undersigned observes that she has carefully considered the Veteran's contentions with respect to the nature of the service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these manifestations. However, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the undersigned accepts the Veteran's testimony with regard to the matters he is competent to address, she places more probative weight upon the competent medical evidence with regard to the specialized evaluation of functional impairment; namely, the assessments of the severity of disability due to the service-connected disabilities addressed above. Finally, in making the negative rating determinations above, the undersigned has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of any additional compensation than that found to be warranted in the analysis above. As such, no increase in the ratings assigned for the disabilities at issueaside from the grants herein of a 40 percent rating for intervertebral disc syndrome of the lumbar spine for the period beginning May 4, 2010, a 20 percent rating for limitation of left hip flexion for the period from October 20, 2016, to December 18, 2018may be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert. II. Entitlement to TDIU Prior to July 19, 2005 A. Legal Criteria TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system are considered to be one disability. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether Unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to her service-connected disabilities, but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). B. Analysis On a VA Form 21-8940 "Veteran's Application for Increased Compensation Based on Unemployability received in November 2013, the Veteran reported education through one year of college and work experience as a car salesman. He stated therein that he became too disabled to work in June 2005. As of July 19, 2005, the Veteran had a single service-connected disability rated as 40 percent disabling and a combined service-connected disability rating of 70 percent. As such, the rating criteria for TDIU under 38 C.F.R. § 4.16(a) were met as of that date, and TDIU was ultimately granted effective from July 19, 2005. Prior to that date, the objective criteria for TDIU were not met, and the most recent July 2019 remand found that the matter of entitlement to TDIU on an extraschedular basis prior to July 19, 2005, was for consideration. Following the July 2019 remand, the matter of entitlement to TDIU on an extraschedular basis prior to July 19, 2005 was referred to the VA Director of Compensation Service (Director) for an opinion under 38 C.F.R. § 4.16(b). The requested opinion was completed in January 2021, with the Director noting that prior to July 19, 2005, service connection was in effect for lumbar muscle strain with a history of left leg sciatic, rated 20 percent disabling; traumatic arthritis of the left hip, rated as 10 percent disabling; traumatic arthritis of the right hip, rated as 10 percent disabling; and a contusion of the buttocks, rated noncompensable. The Director also noted the Veteran's educational history through one year of college and work experience as a car salesman. The conclusion of the Director was as follows: The evidence shows the Veteran last worked full-time June 29, 2005. VA 21-8940 received in 2013[] shows no attempt to obtain sedentary work. We have considered lay statements[;] however[,] greater weight is given to the objective medical evidence of record. Medical evidence showed limitations to extensive standing and walking. The Veteran has SC [service connected] conditions which could have functional impact and impair prolonged activities. As noted above, a high rating in-itself recognizes that the impairment makes it difficult to obtain and keep employment. The American workplace has had a dramatic shift in the labor force over the last several decades. Americans generally have less strenuous jobs compared to those of years ago. The decline is due in part to the increasing reliance on computers, Internet, and e-mail. There are many jobs in the workplace that require only light activity. In addition, technological advances (such as communication devices and adaptive equipment) have broadened employment opportunities for the disabled with reasonable accommodations that were not previously available. This decision evaluates whether the Veteran, because of SC disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). There is no evidence of inability to perform sedentary employment due to SC conditions prior to July 19, 2005. []The evidence fails to support the contention that any of the SC disabilities or a combination of the effects of those disabilities prevented gainful employment prior to July 19, 2005. Entitlement to TDIU prior to July 19, 2005 under [] 38 C.F.R. § 4.16(b) is denied. After reviewing the evidence in light of the Veteran's educational background and employment history, the undersigned concurs with the decision of the Director as the preponderance of the evidence is against a conclusion that the Veteran was unable to secure or follow a substantially gainful occupationin particular, that of a sedentary natureprior to July 19, 2005, due to his service-connected disabilities with consideration of his educational background and work history. As such, a grant of TDIU prior to July 19, 2005, is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.16(b); Gilbert. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.