Citation Nr: 21039792 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 10-06 344 DATE: July 1, 2021 ORDER Entitlement to a rating of 40 percent and no higher for chronic low back disorder prior to January 20, 2021 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating higher than 40 percent for chronic low back disorder from January 20, 2021 is denied. Entitlement to a separate rating of 10 percent and no higher for sciatic radiculopathy of the left lower extremity from October 5, 2006 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate rating of 10 percent and no higher for sciatic radiculopathy of the right lower extremity from May 3, 2007 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating higher than 10 percent for sciatic radiculopathy of the left lower extremity from July 27, 2016 to March 3, 2020 is denied. Entitlement to a rating higher than 10 percent for sciatic radiculopathy of the right lower extremity from May 2, 2017 to March 3, 2020 is denied. Entitlement to a rating of 40 percent and no higher for sciatic radiculopathy of the left lower extremity from March 3, 2020 to the present is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating of 20 percent and no higher for sciatic radiculopathy of the right lower extremity from March 3, 2020 to January 20, 2021 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating higher than 20 percent for sciatic radiculopathy of the right lower extremity from January 20, 2021 is denied. Entitlement to a rating higher than 20 percent for femoral radiculopathy of the left lower extremity from January 20, 2021 is denied. Entitlement to special monthly compensation (SMC) at the housebound rate effective March 3, 2020 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 23, 2019 is granted effective April 9, 2010 and no earlier, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's chronic low back disorder has manifested by back pain limited to 30 degrees or less of flexion. 2. From January 20, 2021, the Veteran's chronic low back disorder does not manifest as unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks in a 12-month period. 3. From October 5, 2006, the Veteran had mild sciatic radiculopathy of the left lower extremity. 4. From May 3, 2007, the Veteran had mild sciatic radiculopathy of the right lower extremity. 5. From July 27, 2016 to March 3, 2020, the Veteran had no more than mild sciatic radiculopathy of the left lower extremity. 6. From May 2, 2017 to March 3, 2020, the Veteran had no more than mild sciatic radiculopathy of the right lower extremity. 7. From March 3, 2020, to the present, the Veteran has had moderately severe sciatic radiculopathy of the left lower extremity. 8. From March 3, 2020 to January 20, 2021, the Veteran had moderate sciatic radiculopathy of the right lower extremity. 9. From January 20, 20201 to the present, the Veteran has had no more than moderate sciatic radiculopathy of the right lower extremity. 10. From January 20, 2021, the Veteran has not had more than moderate femoral radiculopathy of the left lower extremity. 11. As of March 3, 2020, the Veteran has TDIU based solely upon the service-connected disability of PTSD, which is the equivalent of a 100 percent disability rating, and the combined rating of the Veteran's other service-connected disabilities is at least 60 percent. 12. The Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his education and employment history from April 9, 2010 to April 23, 2019. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent and no higher prior to January 20, 2021 for chronic low back disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a rating higher than 40 percent from January 20, 2021 for chronic low back disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 3. From October 5, 2006, the criteria for a separate disability rating of 10 percent and no higher for sciatic radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. From May 3, 2007, the criteria for a separate disability rating of 10 percent and no higher for sciatic radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. From July 27, 2016 to March 3, 2020, the criteria for a rating higher than 10 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 6. From May 2, 2017 to March 3, 2020, the criteria for a rating higher than 10 percent for sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 7. From March 3, 2020 to the present, the criteria for a rating of 40 percent and no higher for sciatic radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 8. From March 3, 2020 to January 20, 2021, the criteria for a rating of 20 percent and no higher for sciatic radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 9. From January 20, 2021 to the present, the criteria for a rating higher than 20 percent for sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 10. From January 20, 2021 to the present, the criteria for a rating higher than 20 percent for femoral radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 11. From March 3, 2020, the criteria for special monthly compensation at the housebound rate are met. 38 U.S.C. § 1114 (s)(1); 38 C.F.R. § 3.350. 12. From April 9, 2010 to April 12, 2019, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1976 to April 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in August 2015. A transcript of that hearing is of record. These matters have been remanded by the Board several times, most recently in November 2020. Over the course of the appeal, a July 2016 rating decision assigned a separate 10 percent evaluation for radiculopathy of the left lower extremity effective July 27, 2016. A June 2017 rating decision assigned a separate rating of 10 percent for radiculopathy of the right lower extremity effective May 2, 2017. An August 2019 rating decision granted entitlement to a TDIU effective April 23, 2019. A March 2021 rating decision assigned a 40 percent rating for the chronic low back disorder effective January 20, 2021. An April 2021 rating decision assigned a 20 percent rating for sciatic radiculopathy of the left and right lower extremities respectively, as well as 20 percent for femoral radiculopathy of the left lower extremity, effective January 20, 2021. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 is necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to a rating higher than 20 percent for chronic low back disorder prior to January 20, 2021 The Veteran contends that his low back symptoms have warranted a rating higher than 20 percent throughout the period on appeal. During the pendency of the Veteran's claim and appeal, the criteria for rating back disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, Codes 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with intervertebral disc syndrome (IVDS) under Code 5243 and all other intervertebral disc disabilities under 5242. As such, Code 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); Code 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses. The Veteran's chronic low back disorder with degenerative arthritis, lumbosacral strain, IVDS, and spinal stenosis is currently rated under DC 5237, which indicates it should be rated the General Rating Formula for Diseases and Injuries of the Spine. However, since IVDS is among the Veteran's low back disabilities, the Board will also consider the Formula for Rating IVDS Based on Incapacitating Episodes and apply whichever method results in a higher rating. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1 Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with 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 IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 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. Id. at Note 1. This is a case where the severity of the Veteran's low back disability has remained roughly the same throughout the period on appeal. The May 2007 VA examination found that the Veteran's flexion was limited to 30 degrees, which is consistent with a 40 percent rating. However, the examiner indicated that the Veteran's symptoms were not related to his service-connected disability because they were the result of a fall the Veteran experienced in 2004 in which he fractured his L3. Several VA examiners similarly opined that the Veteran's current back symptoms were related to the 2004 fall rather than the in-service injury. The Board notes, however, that the Veteran had already been assigned a compensable rating for his service-connected low back disability since well before the 2004 fall, so it is not correct to say that none of the Veteran's ongoing back symptoms are related to his service-connected back disability. None of the VA examinations conducted prior to January 20, 2021 clearly delineated which of the Veteran's back symptoms were related to his service-connected back disability and which were related to the nonservice-connected back disability. The January 2021 examiner was asked to provide an opinion on which of the Veteran's low back symptoms were service-connected and nonservice-connected, and the response was that the L3 compression fracture is clearly due to the fall, but that any other residuals cannot be distinguished without speculation. As the record reflects that it is not possible to clearly distinguish which of the Veteran's low back symptoms are related to the service-connected back disability and which are related to the nonservice-connected back disability, the Board must resolve doubt in the Veteran's favor and attribute all of the Veteran's back symptoms to his service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). The January 2021 examination does not represent a worsening in the Veteran's condition. It is simply the first point at which it became clear that the Veteran's service-connected and nonservice-connected back symptoms cannot be distinguished from one another and thus should all be attributed to the service-connected disability. As the Veteran's back symptoms from as early as May 2007 were consistent with a 40 percent rating, the Board finds that the Veteran's back disability should be assigned a 40 percent rating throughout the period on appeal. The Veteran's symptoms are not consistent with a rating higher than 40 percent. The May 2007 examination noted ankylosis of the thoracolumbar spine in the neutral position. Ankylosis in the neutral position always represents favorable ankylosis. 38 C.F.R. § 4.71a, Note (5). Favorable ankylosis of the thoracolumbar spine is contemplated by the 40 percent rating that has been assigned. There is no indication in the record of unfavorable ankylosis, which means that the Veteran's symptoms are not consistent with a rating higher than 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. The Board recognizes that the May 2007 examination also listed "neurologic symptoms due to nerve root stretching" after "indications of unfavorable ankylosis." However, as the other examinations and treatment records contain no indication of unfavorable ankylosis, and the May 2007 examiner specifically found the position of the thoracolumbar spine with ankylosis was neutral, the Board interprets this notation as a means of indicating the presence of radiculopathy due to nerve root stretching rather than an indication of unfavorable ankylosis. There is also no indication in the record that the Veteran has had incapacitating episodes in which he was prescribed bed rest by a physician having a total duration of at least 6 weeks during a 12-month period. Therefore, the Veteran's disability is not consistent with a rating higher than 40 percent under the Formula for Rating IVDS Based on Incapacitating Episodes. The Board finds that the Veteran is entitled to a rating of 40 percent and no higher prior to January 20, 2021. 2. Entitlement to a rating higher than 40 percent for chronic low back disorder from January 20, 2021 The January 20, 2021 examination found no ankylosis. The examination found that although the Veteran has IVDS, he has not had any episodes of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician in the past 12 months. Therefore, the Veteran's low back disability does not meet the criteria for a rating higher than 40 percent under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes. Entitlement to a rating higher than 40 percent from January 20, 2021 is thus denied. 3. Entitlement to a rating of 10 percent and no higher for sciatic radiculopathy of the left lower extremity from October 5, 2006 The Veteran has been assigned a separate rating for sciatic radiculopathy of the left lower extremity effective as of July 27, 2016. However, the Board's review of the record indicates that he should be assigned a separate rating of 10 percent for sciatic radiculopathy of the left lower extremity effective October 5, 2006. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. When deciding an increased rating claim, the Board can consider evidence back to the date of claim, and can also look back on evidence within one year before the date of claim. 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In this case, the radiculopathy issue is part of the March 2007 claim for an increased rating for his back condition. The earliest reference to radicular symptoms is an October 5, 2006 private treatment record, which is within the one year before the date of claim. The October 5, 2006 treatment note indicates that the Veteran's back pain was becoming worse and now pain as well as numbness and tingling went down the left leg. A November 2006 nerve conduction study suggests very mild left L4-5 radiculopathy. As the radiculopathy is described as very mild, the Board finds that a rating higher than 20 percent is not warranted. 4. Entitlement to a rating of 10 percent and no higher for sciatic radiculopathy of the right lower extremity from May 3, 2007 Although a June 2017 rating decision assigned a separate 10 percent rating for radiculopathy of the right lower extremity effective May 2, 2017, the Board finds that the separate 10 percent rating should be assigned effective May 3, 2007. The May 3, 2007 VA examination noted decreased sensation in the bilateral lower extremities, including in the dorsum of the right foot and the tight great toe. This examination also noted neurologic symptoms due to nerve root stretching, which is consistent with radiculopathy. The Veteran's symptoms were eventually diagnosed as bilateral sciatic radiculopathy in the May 2017 VA examination. The Board will resolve doubt in the Veteran's favor and find that the radicular symptoms reported in the May 3, 2007 examination were early manifestations of the radiculopathy of the right lower extremity eventually diagnosed in the May 2017 VA examination. As these symptoms were not consistently identified in examinations or in the treatment records, the Board finds that they are no more than mild. Therefore, a rating of 10 percent and no higher is assigned for sciatic radiculopathy of the right lower extremity effective May 3, 2007. 5. Entitlement to a staged rating for sciatic radiculopathy of the left lower extremity higher than 10 percent from July 27, 2016 to March 3, 2020 6. Entitlement to a rating for sciatic radiculopathy of the right lower extremity higher than 10 percent from May 2, 2017 to March 3, 2020 The Board finds that the record does not support the assignment of a rating higher than 10 percent for sciatic radiculopathy of the left lower extremity from July 27, 2016 to March 3, 2020 or a rating higher than 10 percent for the right lower extremity from May 2, 2017 to March 3, 2020. During the period from July 27, 2016 to March 3, 2020, a July 2016 VA examination found mild sciatic radiculopathy on the left side. A May 2017 VA treatment note found that there was moderate sensory motor peripheral neuropathy, but no electrodiagnostic study evidence of lumbar radiculopathy on either side. A May 2017 examination cited this study in support of a note that the Veteran's symptoms are not attributed to lumbar radiculopathy per EMG testing, but the examiner also decreased left upper thigh sensation, decreased sensation of the bilateral foot and toes, and mild numbness bilaterally. The examiner found mild involvement of the sciatic nerve bilaterally. A May 2018 VA examination also found mild radiculopathy bilaterally, although the examiner only noted mild left femoral radiculopathy. An October 2019 VA treatment note indicates peripheral neuropathy of the lower extremities and left sided radiculopathy. A December 2019 private treatment record described numbness going into his left and right legs to his feet. The Board finds that the Veteran's sciatic radiculopathy of the left lower extremity from July 27, 2016 to March 3, 2020 is best described as mild because the radiculopathy was not consistently detected in the record, and when it was detected it was consistently characterized as mild. The Board will not assign a separate rating for femoral radiculopathy at this point, in spite of the contradictory May 2018 examination finding both bilateral mild radiculopathy and mild left femoral radiculopathy, because the symptoms described are the same as those described by the left sciatic radiculopathy. As will be discussed later in this decision, it is impermissible pyramiding to assign multiple ratings for the same symptoms or manifestations. Similarly, the Board finds that the Veteran's sciatic radiculopathy of the right lower extremity from May 2, 2017 to March 3, 2020 is best described as mild because it was detected even more inconsistently than the left side radiculopathy, and when it is detected it is characterized as mild. For the foregoing reason, the Board denies entitlement to a rating higher than 10 percent for sciatic radiculopathy of the left lower extremity from July 27, 2016 to March 3, 2020, and denies entitlement to a rating higher than 10 percent for sciatic radiculopathy of the right lower extremity from May 2, 2017 to March 3, 2020. 7. Entitlement to a staged rating for sciatic radiculopathy of the left lower extremity higher than 10 percent from March 3, 2020 to January 20, 2021, and higher than 20 percent from January 20, 2021 8. Entitlement to a staged rating for sciatic radiculopathy of the right lower extremity higher than 10 percent from March 3, 2020 to January 20, 2021 9. Entitlement to a staged rating for sciatic radiculopathy of the right lower extremity higher than 20 percent from January 20, 2021 The Board finds that a March 3, 2020 private treatment record indicates a worsening in the Veteran's bilateral radiculopathy that is consistent with a higher rating. A March 3, 2020 private treatment note indicates that the Veteran's low back pain radiates into his buttocks bilaterally, resulting in numbness and tingling in the left lower extremity into the lateral thigh and into the foot affecting all toes, and that the Veteran's radiculopathy on the right side had worsened to the point that there was numbness and tingling in the right lower extremity. The Veteran reported weakness in his right foot, especially when walking, with inversion and rolling of the ankle. The Veteran reported difficulty getting both legs into and out of the car, and feeling off-balance when walking. He denied buckling or falling. His reflexes were 2/4 for the bilateral knees and ankles, and he had decreased sensation over the lateral lower leg on the left and anterior right thigh. The physician noted a mild shuffling gait and a slight limp on the right side. The physician specified that the Veteran's numbness and tingling affected the lower extremities bilaterally, specifically his bilateral feet. A January 2021 VA examination found weakened muscle strength measured as 4/5 in the right and left hip flexion and left knee extension. Reflexes were hypoactive at the right ankle and knee and at the left ankle. Reflexes were absent in the left knee. Testing indicated decreased sensation in the right-side thigh, and absent sensation in the right-side lower leg and foot/toes. There was absent sensation throughout the left lower extremity. There was absent proprioception, or awareness of the position and movement of the body, in the bilateral toes and left ankle, and impaired proprioception in the right ankle, which the Board notes is consistent with the difficulty with gait noted in the March 3, 2020 private treatment note. The January 2021 examination found moderate intermittent pain, moderate paresthesias and/or dysesthesias, as well as severe numbness in the right lower extremity, and moderate constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in the left lower extremity. The examiner found involvement of the bilateral sciatic nerves and the left femoral nerve. A March 2021 addendum described the severity of the sciatic radiculopathy as moderate in the right side, and moderate or possibly severe in the left due to mild weakness to knee extension. The record from March 3, 2020 to the present indicates that the Veteran's radiculopathy has progressed to the point that it was affecting his gait and the way he enters and exits cars, which necessarily interferes with his daily life. The Board finds that this level of impairment is at least moderate. The treatment note generally indicates that the left lower extremity radiculopathy is more severe than the radiculopathy on the right side, which is also reflected by the January 2021 examination. The Board finds that the sciatic radiculopathy of the right lower extremity is best described as moderate because the symptoms have increased to the point that they are a consistent difficulty that the Veteran must navigate, and which affect his gait. The Board does not characterize the sciatic radiculopathy of the right lower extremity as moderately severe because most of his radicular symptoms intermittent pain and paresthesias and/or dysesthesias were described as moderate. Only numbness was described as severe. This rating is consistent with the March 2021 addendum, which described the Veteran's sciatic radiculopathy of the right lower extremity as moderate. By contrast, the left lower extremity had weakness in the left side hip flexion as well as knee extension, had absent sensation throughout the entire left lower extremity on testing, had absent reflexes at the left knee, and most of his left lower extremity radicular symptoms (namely, intermittent pain, paresthesias and/or dysesthesias, and numbness) were described as severe, while only constant pain was described as moderate. The left lower extremity radiculopathy is not wholly sensory because it results in weakness in the hip and knee. Therefore, the Board finds that the left lower extremity sciatic radiculopathy is most appropriately characterized as moderately severe. The left lower extremity sciatic radiculopathy is not severe because the January 2021 examination indicates that there is no muscle atrophy, much less the severe marked muscular atrophy that is required for severe sciatic radiculopathy. For the foregoing reasons, the Board will assign a rating of 20 percent and no higher for sciatic radiculopathy of the right lower extremity from March 3, 2020 to the present, and a rating of 40 percent and no higher for sciatic radiculopathy of the left lower extremity from March 3, 2020 to the present. 10. Entitlement to an initial rating higher than 20 percent for femoral radiculopathy of the left lower extremity from January 20, 2021 The April 2021 rating decision assigned a separate 20 percent rating for femoral radiculopathy of the left lower extremity effective January 20, 2021. The Board will not assign a higher rating because the record does not clearly distinguish symptoms of femoral radiculopathy of the left lower extremity from the symptoms of sciatic radiculopathy of the left lower extremity. There is no indication of whether, for example, the numbness of the left lower extremity is the result of the sciatic or femoral radiculopathy. The evaluation of the same manifestation under different diagnoses is considered pyramiding and is to be avoided. 38 C.F.R. § 4.14. In this case, as the manifestations of radiculopathy (the numbness, pain, paresthesias and/or dysesthesias, weakness, etc.) have been contemplated by the Board in assigning its rating for sciatic radiculopathy of the left lower extremity, it would be impermissible pyramiding to assign a separate higher rating for the same manifestations under the different diagnosis of femoral radiculopathy. Moreover, even if it was not impermissible pyramiding, there is nothing in the record to indicate that the Veteran's femoral radiculopathy of the left lower extremity, as opposed to the sciatic radiculopathy, is more than moderate. Therefore, the Board must deny entitlement to a rating higher than 20 percent for femoral radiculopathy of the left lower extremity from January 20, 2021. 11. Entitlement to SMC at the housebound rate effective March 3, 2020 The record reasonably raises the issue of entitlement to SMC at the housebound rate, effective March 3, 2020. The Board is granting entitlement to special monthly compensation in full, which means that there is no prejudice to the Veteran in adjudicating this issue even though it has not been considered by the AOJ in the first instance. Special monthly compensation (SMC) at the 38 U.S.C. § 1114 (s) rate is payable where a veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Where there is no one disability evaluated under the rating schedule as 100 percent disabling, a TDIU due to a single service-connected disability will qualify. An August 2019 rating decision grants entitlement to a TDIU effective April 23, 2019 based solely upon the Veteran's service-connected PTSD. Therefore, the Veteran's PTSD qualifies as a single disability rated as 100 percent disabling. As of March 3, 2020, the combined rating of the Veteran's other service-connected disabilities is at least 60 percent. 38 C.F.R. §§ 4.25, 4.26. As such, the criteria for entitlement to SMC at the 38 U.S.C. § 1114(s) or housebound rate are met, and SMC at the housebound rate is warranted effective March 3, 2020. 12. Entitlement to a TDIU prior to April 23, 2019 The Veteran contends that his service-connected disabilities rendered him unemployable prior to April 23, 2019, the date at which he was granted entitlement to a TDIU by an August 2019 rating decision. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The central inquiry is "whether service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The level of education, special training, and previous work experience may be considered as part of a TDIU claim. Age or impairment(s) caused by nonservice-connected disabilities may not be considered when determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363 In this case, during the period in question the Veteran was service-connected for PTSD (rated as 50 percent disabling from April 9, 2010), chronic low back disorder with degenerative arthritis (rated as 40 percent disabling), sciatic radiculopathy of the left lower extremity (rated as 10 percent disabling), and sciatic radiculopathy of the right lower extremity (rated as 10 percent disabling). The Veteran has a combined disability evaluation of 50 percent prior to April 9, 2010, and 80 percent or higher thereafter. The thus Veteran did not meet the schedular requirements prior to April 9, 2010, but did meet the schedular requirements thereafter. Even though the Veteran did not meet the schedular requirements prior to April 9, 2010, the Board must still consider whether he met the criteria for a TDIU on an extraschedular basis during that period. Therefore, the Board will consider the entire period prior to April 23, 2019. The Social Security Administration (SSA) found in a November 2009 determination that the Veteran was disabled primarily due to the effects of a nonservice-connected cerebrovascular disease and secondarily due to the service-connected back disability. The SSA also considered cerebral aneurysm residuals with headaches and personality change, cervical spondylosis with nerve root impingement, residuals from L3 compression fracture, and major depressive disorder with a history of psychosis. The SSA's determinations are based in large part on nonservice-connected disabilities that the Board cannot consider. Therefore, the SSA's findings have very limited probative value in the Board's TDIU analysis. The portion of the SSA record that is useful in this matter is the February 2007 medical letter finding that due to the Veteran's low back disability with radiculopathy, the Veteran has permanent restrictions of no lifting more than 20 pounds, no excessive bending or twisting movements, and no mopping. The letter writer strongly recommended medical disability as the Veteran was significantly deconditioned and unable to physically perform a reasonable function of services required of him in his custodial job for the United States Postal Service. Another February 2007 letter indicates that the Veteran's low back pain prevents him from prolonged standing, repetitive bending or lifting, or repetitive twisting and lifting, which was a significant part of the Veteran's custodial job. A March 2007 statement from the Veteran's supervisor indicates that light duty was not available due to the extent of his restrictions, and that his restrictions involved major daily parts of his job, including mopping floors and shoveling snow. The record thus reflects that the Veteran's service-connected low back disability and associated radiculopathy prevents him from performing his previous work as a laborer custodian. However, the Board must consider whether he is able to perform any work, not simply his previous work. The Veteran declined to provide information about his education and employment history, but the Board notes that the SSA found that he had at least a high school education, and that the only past work discussed by the SSA was his lengthy career as a custodian for the United States Postal Service. The Board will resolve doubt in the Veteran's favor and assume that he has not completed a college degree, and that his only work experience is as a laborer custodian. Even so, the Board must still consider whether he has the physical and mental capacity to perform entry-level work that can be done from a seated position, without physical exertion such as heavy lifting or twisting. The Board notes that the SSA's finding that the Veteran's job skills do not transfer to other occupations within his functional capacity does not impact this decision because the SSA's finding considered several serious nonservice-connected disabilities which the Board is prohibited from considering. While work that requires sitting in the same position for extended periods, such as driving jobs, might be beyond the Veteran's capacity, reasonable accommodation in an entry-level position that involves answering phones, greeting customers, or working in a call center would allow him to shift position or get up and sit down again as necessary, and would not require heavy lifting or prolonged standing. Prior to April 9, 2010, the Board may not consider any effects of his PTSD on his ability to work, including any difficulty getting along with others. The Board thus finds that, prior to April 9, 2010, the Veteran's service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment. From April 9, 2010, the Board must consider his PTSD symptoms as well as symptoms of his low back disability and residuals radiculopathy. An August 2012 VA examination specifically stated that the reason the Veteran cannot work is due to his nonservice-connected stroke from a cerebral aneurysm. The Veteran's PTSD symptoms were listed as depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The examiner noted some social dysfunction, described as mild to moderate, while his overall impairment is moderate to severe, including effects from the nonservice-connected stroke. Although the SSA's mental residual capacity assessment does not distinguish service-connected from nonservice-connected psychiatric symptoms, and thus has limited probative value, the Board recognizes the assessment indicates moderate limitations in the Veteran's ability to interact with the general public and ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. This impairment is consistent with the August 2012 PTSD examination, noting mild to moderate social dysfunction. The Board recognizes that, at this point, the Veteran's PTSD symptoms alone would not prevent the Veteran from working in his previous occupation as a custodian. However, as has been noted above, his low back disability and associated radiculopathy do prevent him from working as a custodian. The positions that are within the Veteran's physical capacities would require more interpersonal interaction than he is used to, including dealing with potentially upset customers, and navigating the stress of adapting to an entirely new type of work environment with the additional difficulty of managing his significant low back pain. Resolving doubt in the Veteran's favor, the disturbances of motivation and mood, suspiciousness, anxiety, panic attacks, and mild to moderate social dysfunction, would all likely interfere with his ability to transition to a more public-facing position. When combined with the effects of the Veteran's other service-connected disabilities and the lack of experience in a new field, these symptoms would likely make the work transition untenable. For the foregoing reasons, the Board resolves doubt in the Veteran's favor and finds that it is at least as likely as not that the Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his education and occupational history from April 9, 2010. The Veteran's claim of entitlement to a TDIU is granted effective April 9, 2010, and no earlier. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.