Citation Nr: 21041896 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-20 368 DATE: July 10, 2021 ORDER Service connection for headaches is granted. For the period prior to April 30, 2013, a higher rating of 50 percent, but not higher, for anxiety disorder is granted. For the period since April 30, 2013, a higher rating of 70 percent, but not higher, for anxiety disorder is granted. For the period prior to August 5, 2015, a higher rating of 40 percent, but not higher, for degenerative disc disease of the lumbar spine is granted. For the period since August 5, 2015, a higher rating of 60 percent, but not higher, for degenerative disc disease of the lumbar spine is granted. An effective date earlier than May 16, 2018, for service connection for radiculopathy of the right lower extremity is granted. An effective date earlier than May 16, 2018, for service connection for radiculopathy of the left lower extremity is granted. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to an increased rating for radiculopathy of the right lower extremity is remanded. Entitlement to an increased rating for radiculopathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to April 3, 2017, is remanded. FINDINGS OF FACT 1. The Veteran's current headaches were incurred in service. 2. Prior to April 30, 2013, the severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment with reduced reliability and productivity. 3. For the period since April 30, 2013, the severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment with deficiencies in most areas. 4. Prior to August 5, 2015, the Veteran's lumbar spine disability manifested as incapacitating episodes occurring at a frequency that more closely approximates the criteria for a rating of 40 percent. 5. Since August 5, 2015, the Veteran's lumbar spine disability manifested as incapacitating episodes occurring at a frequency that more closely approximates the criteria for a rating of 60 percent. 6. The evidence shows that the Veteran had radicular symptoms in his right lower extremity, secondary to his service-connected lumbar spine disability, prior to May 16, 2018. 7. The evidence shows that the Veteran had radicular symptoms in his left lower extremity, secondary to his service-connected lumbar spine disability, prior to May 16, 2018. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. For the period prior to April 30, 2013, the criteria for a disability rating of 50 percent, but not higher, for the Veteran's mental health disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413. 3. For the period since April 30, 2013, the criteria for a disability rating of 70 percent, but not higher, for the Veteran's mental health disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413. 4. For the period prior to August 5, 2015, the criteria for a higher rating of 40 percent, but not higher, for degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5239. 5. For the period since to August 5, 2015, the criteria for a higher rating of 60 percent, but not higher, for degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5239. 6. The criteria for an earlier effective date than May 16, 2018, for the grant of service connection for radiculopathy of the right lower extremity are met. 38 U.S.C. § 5110, 5107; 38 C.F.R. § 3.400. 7. The criteria for an earlier effective date than May 16, 2018, for the grant of service connection for radiculopathy of the left lower extremity are met. 38 U.S.C. § 5110, 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2007 to December 2007, and from May 2009 to June 2010, to include service in Southwest Asia from July 2009 to May 2010. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision. The Veteran testified at a Board hearing in March 2019. The Board remanded this appeal in September 2020. Finally, the Board notes that the Veteran recently revoked the power of attorney for his accredited agent representative. 06/15/2021, VA 27-0820 Report of General Information. As the Veteran has not appointed a new representative, he is deemed to be representing himself. 1. Entitlement to service connection for headaches. The Veteran seeks service connection for residuals of a traumatic brain injury (TBI), to include headaches. 07/10/2010, VA 21-526 Veterans Application for Compensation or Pension. He has indicated that his head was injured during service in Iraq. In detail, he has stated that he hit the back of his head while riding inside the gunner's turret of an MRAP vehicle that struck a ditch. He has also indicated that his memory of the rest of the convoy is very vague and that he later became nauseous and started having very bad headaches as well as anxiety and mood swings. 3/13/2012, Correspondence; see also 06/26/2012, Correspondence; 01/11/2017, Correspondence. (Service connection is already in effect for anxiety. This appeal includes the issue of a higher rating for anxiety, discussed separately.) An August 2012 VA examination shows a diagnosis of headaches. The examiner opined that the Veteran's headaches are more likely than not related to a childhood head injury, which required surgical correction of mandibular fracture and the insertion of a plate to his head. The examiner explained that this was a potent etiology for the later development of headaches, even if first manifested years later. The examiner also concluded that the Veteran's headaches were not permanently aggravated beyond the normal progression of the disease by service. The examiner, however, did not provide a rationale for this part of the opinion. The Board finds that the August 2012 VA opinion does not show adequate consideration of the relevant evidence. Significantly, the opinion fails to address the fact that the Veteran's headaches appear to have first manifested during service. Moreover, the opinion does not include a rationale for the conclusion that the preexisting condition was not aggravated by the in-service head injury. The Board understands that the Veteran's childhood head injury could be the root cause of the headaches. If that's the case, the question become whether the Veteran's in-service head injury contributed to the onset of the headaches. Based on the evidence of record, the Board finds that it is at least as likely as not that the Veteran's in-service head injury contributed to the development of the Veteran's current headaches. As mentioned, the evidence establishes that the Veteran began to experience headaches in service, following his in-service head injury. The Board acknowledges that the Veteran had a pre-existing head injury, which he reported as early as December 2006 in a medical prescreen of medical history report. 11/17/2015, STR-Medical-Photocopy, at 28. There is, however, no indication that the Veteran was experiencing chronic headaches at the time of enlistment for his second period of service (period during which he experienced the in-service head injury). Significantly, an April 2008 note (within service treatment records) clearly indicates that the Veteran did not have headaches or residual deficits from the childhood head injury. 02/27/2013, STR-Medical, at 87. Therefore, it is logical to conclude that the Veteran's in-service head injury led to the manifestation of the Veteran's headaches. 38 C.F.R. § 3.303. With resolution of doubt on this material issues, a grant of service connection is warranted, even if the underlying root cause is the childhood head injury. 38 C.F.R. § 5107(b). 2. Entitlement to a higher rating for anxiety disorder, currently rated as 70 percent disabling. Staged ratings are in effect for the Veteran's mental health disability (characterized as anxiety). For the period prior to April 3, 2017, it is rated as 30 percent disabling. Thereafter, it is rated as 70 percent disabling. The Board also be notes that the Veteran is in receipt of a total disability rating based on individual unemployability (TDIU) since April 3, 2017. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. In pertinent part, the General Formula for Mental Disorders states a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. Turning to the evidence, an August 2012 VA examination shows a diagnosis of anxiety disorder NOS. The examiner described the Veteran's occupational and social impairment as mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. The Veteran reported feeling overwhelmed in public areas and anxiety when people ask him questions, also being impatient and aggressive. He acknowledged that medications were helping with those symptoms. He reported mental health treatment only through VA. He denied any in-patient psychiatric treatment. The examiner endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. At the time of the examination, the Veteran was thinking about going to college and had had his own construction business for a year and a half. He got along with his only employee, also with customers despite sometimes wanting "to explode." He stated that had always been organized and focus but now had to put a lot of effort into this, as he was easily distracted. In September 2013, the Veteran submitted a Psych Impairment Questionnaire (dated April 2013) completed by a VA mental health treatment provider. 09/03/2013, Medical Treatment Record - Government Facility. The questionnaire shows a diagnosis of intermittent explosive disorder and panic disorder. The Veteran was noted to have deficiencies in family relations, difficulty in adapting to stressful circumstances, unprovoked hostility and irritability, and panic attacks. He was found to be moderately limited in his abilities to maintain attention and concentration for extended periods and to get along with co-workers or peers without distracting them or exhibiting behavioral extremes, and markedly limited in his abilities to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance and to complete a normal workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. The examiner also noted that the Veteran was easily irritated, to include saying inappropriate angry things and punching a whole in the wall, and that his panic attacks were likely to disrupt work. The examiner indicated that she would anticipate the Veteran to be absent from work less than once a month. In June 2017, the Veteran submitted another Psych Impairment Questionnaire (dated April 2017) completed by a different VA mental health treatment provider. 06/05/2017, Medical Treatment Record - Non-Government Facility. The Veteran was noted to have deficiencies in family relations, difficulty in adapting to stressful circumstances, unprovoked hostility and irritability, persistent irrational fears, deficiencies in mood, and deficiencies in work and school. The examiner also noted that the Veteran was always anxious, hyperalert, had difficulty leaving the house due to anxiety, had difficulty being around crowds, has obtained jobs but then is too anxious to go, and gets easily irritated by even small stresses. He was noted to be moderately limited in his abilities to interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, be aware of normal hazards and take appropriate precautions, and set realistic goals or make plans independently, and markedly limited in his abilities to remember locations and work-like procedures, maintain attention and concentrations for extended periods, perform activities within schedule, maintain regular attendance, and be punctual with customary tolerance, complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, and travel to unfamiliar places or use public transportation. The examiner added that the Veteran's severe anxiety makes it had frequently to leave his house, and indicated that she anticipated that the Veteran's impairment would cause him to be absent from work more than 50 percent of the time. It was noted that the longest time at a job had been about four months, due to attendance problems. Most recently, the Veteran underwent a VA examination in May 2018. He had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. He was noted to be in a significant relationship and living with his partner, with whom he had two children, ages 2 and 1. He was also noted to have divorced from his first wife in December 2013. He described his current relationship as good. He described his children as "life changers." He was noted to no longer work due to his back injury but noted that had to stop running his own business due to his unreliability. It was noted that his last full-time employment was six months in 2015. He had started school but had dropped out, due to his inability to get out of the house. The examiner endorsed symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Based on the evidence above, the Board finds that higher ratings are warranted for the period prior to April 3, 2017. Specifically, the Board finds that the Veteran is entitled to a rating of 50 percent for the period up to April 30, 2013 (date of the psychiatric impairment questionnaire), and an even higher rating of 70 percent, thereafter. In this regard, the Board notes that, prior to that date, the evidence shows symptoms that more closely approximate that rating, such as panic attacks, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The evidence, however, fails to support a rating higher than 70 percent. In this regard, the Board notes that around this time the Veteran was self-employed for a period of at least one year and half and had plans to attend college. This evidence tends to show that, during this period, the Veteran had still not reached the level of severity that was first documented in the April 2013 psychiatric impairment questionnaire. In contrast, the evidence for the period since April 30, 2013, consistently portrays a more severe disability picture, one that more closely approximates the criteria for a rating of 70 percent, as it shows impairment with deficiencies in most areas due to symptoms such as panic attacks affecting the ability to function, impaired impulse control, and difficulty in adapting to stressful circumstances. A rating higher than 70 percent, however, is not warranted, as the evidence fails to show total social impairment, as required for the next available rating of 100 percent. See Total, Merriam-Webster, https://www.merriam-webster.com/dictionary/total (defining the adjective "total" as, among other entries, absolute). Rather, the evidence shows that the Veteran has two children with his significant other, with who he has a good relationship. This evidence is indicative that the Veteran has social impairment, but it is less than total. Thus, a rating of 100 percent is not warranted. 3. Entitlement to an increased rating for degenerative disc disease of the lumbar spine, currently rated as 40 percent disabling. Staged ratings are in effect for the Veteran's lumbar spine disability. For the period prior to May 16, 2018, the Veteran is in receipt of a rating of 10 percent. Thereafter, he is in receipt of a rating of 40 percent. 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Turning to the evidence, VA treatment records show treatment for the back since 2010. A June 2011 MRI report shows a finding of mild multilevel degenerative changes in the lumbar spine, with the most pronounced at L4-L5 and L5-S1. 07/08/2012, CAPRI, at 305. At an October 2011 pain clinic visit, the Veteran described his back pain as sharp and throbbing, and aggravated by prolonged stooping, repetitive bending, and lifting activities. He also reported radiating pain into right posterior thigh, with occasional heel throbbing. Past treatment had consisted of muscle relaxants and nonsteroidal anti-inflammatory medication. The Veteran was noted to have spine flexion to 40 degrees and extension to 5 degrees, with no evidence of spasm or neurologic abnormalities. Id. at 67-68. An April 2012 pain clinic visit shows continued complaints of back pain. He described the pain as intermittent but noted that it can last for several days when he does twisting activities. He denied numbness or tingling, and it was noted that there was "very little radiation." He stated that his major concern was that his back was "loose." It was noted that the Veteran was working in construction. Physical exam revealed normal gait, with motion showing slight tightness of the hamstring musculature and flexion, which was limited by five degrees. Id. at 20-21. An August 2012 VA examination shows forward flexion to 70 degrees, with pain. The examination did not include consideration of additional functional loss with repeated use over time or during flare-ups. The examination was negative for guarding or muscle spasms, weakness, sensory deficits, or radicular pain, and IVDS, with no indication of ankylosis. An August 2012 VA pain clinic note indicates that when the Veteran's back pain is severe, it can last for a week and a half, associated with back stiffness. It was noted that, most of the time, the pain radiates into the right greater than the left posterior thigh area. On physical examination, he had flexion limited to 30 degrees. There was no evidence of spasm or neurological abnormalities. 04/27/2017, CAPRI, at 209-201. In his September 2012 notice of disagreement, the Veteran reported having been told by a VA physician that he might need back surgery in a couple of years. He added that when his back goes out, which is often, he is down for at least a week. He explained that he is pretty much useless when his back goes out. In a November 2012 statement, he indicated that there are weeks where he can barely get out of bed and cannot bend either way at all. 11/30/2012, Correspondence. An August 2015 VA primary care note indicates that the Veteran sought treatment for what was described as "exacerbations of low back pain." He was noted to have numbness and tingling to the left lower extremity. At an August 2015 VA psychology visit, the Veteran described his back as always annoying, occasionally so severe that it was very painful to stand back upright from a bent over position and to walk. Id. at 72. An October 2015 VA primary care note references "worsening lower back pain," with pain level described as 10/10. Id. at 58-59. An October 2015 MRI revealed moderate multilevel spondyloarthrosis, most significant at L3-L4. On the order for the MRI it was noted that the Veteran had a history of numbness and tingling to the lower extremities. Id. at 53-54. A primary care note, also from October 2015, indicates that the Veteran was seeking treatment for exacerbation of his low back pain. It was noted that he was unable to urinate (drips only) or stand fully to urinate. The Veteran also complained of paresthesias to his legs, with the left being worse that the right. It was noted that the Veteran was working as a crane driver. Id. at 51-52. In November 2016, the Veteran sought to re-establish treatment for multiple disabilities, including his back. He denied weakness, instability, falls, bowel or bladder involvement, or erectile dysfunction. Id. at 23. In a January 2017 statement, the Veteran reported that his back went out frequently, at which point he cannot walk, take shoes on or off, and experiences a pain beyond words. He added that he had tried working but had been fired due to his back and anxiety issues, which made him unreliable and unable to hold a steady job. 01/11/2017, Correspondence. A February 2017 VA telephone contact note reflects that the Veteran wanted to get back into pain management for his back. He stated that he had missed a lot of appointments due to his anxiety. He complained of worsening low back pain that had made him bed ridden for the last few days, adding that he had difficulty walking. Id. at 11. In April 2017, the Veteran submitted a TDIU application. He asserted that several service-connected disabilities, including his back disability, had affected his ability to working full-time since May 2010. He reported last working full-time in November 2015. 04/20/2017, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In November 2017, the Veteran sought emergency VA treatment for his back. He complained of worsened back pain over the past few days, with pain so severe that he felt numbness and tingling sensation of the buttocks, and back of the legs to the heel. The treatment note described the Veteran's lumbar compression as severe. 04/24/2018, CAPRI, at 20-21. On a follow-up visit, also in November 2017, he expressed interest in again being referred to the pain clinic. Id. at 9. In an April 2018 statement, the Veteran indicated that he could not sit or stand for more than 20 minutes and reiterated that when his back goes out the pain is crippling, and he cannot walk or move. 04/18/2018, Correspondence. Also, in April 2018, the Veteran indicated that he was fired in November 2015 and had not worked for two years. 04/18/2018, VA 21-4192 Request for Employment Information in Connection with Claim for Disability. The Veteran underwent a second VA examination in May 2018. The Veteran reported pain in his mid to lower back. He reported loss of urine during flare-ups and radiating pain into the bilateral buttocks, scrotum, and posterior thighs, and prickling in his heels. On physical examination, he had forward flexion to 20 degrees. It was noted that he had guarding and muscle spasm resulting in abnormal gait or abnormal spine contour. He was found to have moderate radiculopathy in his right lower extremity and mild radiculopathy in his left lower extremity. The examination was negative for ankylosis or use of assistive devices. At his May 2019 Board hearing, the Veteran explained that his spine disability manifests as numbness on his legs and heels, with the right worse than the left. Regarding incapacitating episodes, he explained that they occur at least once a month and last around a week, where he cannot walk or bend for four or five days. Based on the evidence above, the Board finds that the Veteran is entitled to higher ratings for his service-connected back disability. Specifically, the Board finds that he is entitled to a rating of 40 percent for the period prior to August 5, 2015, and a rating of 60 percent from August 5, 2015, forward. The record shows that the Veteran's back disability has worsened during the appeal period. This worsening was first documented on a VA primary care note from August 5, 2015. Shortly thereafter, in November 2015, the Veteran was laid off from what turned out to be his last employment. This development confirms that the Veteran experienced a worsening of his back disability in/around 2015. The Board finds that this evidence of a worsening warrants staged ratings. The record shows that the most severe manifestation of the Veteran's back disability it the incapacitating episodes that it causes. As mentioned above, at his May 2019 Board hearing, the Veteran reported incapacitating episodes at least once a month and lasting around a week, where he cannot walk or bend for four or five days. This testimony is consistent with other evidence of record, including the Veteran's VA treatment records for the period since August 5, 2015. Moreover, the testimony establishes a level of severity that meets the criteria for the maximum rating of 60 percent under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.3. Accordingly, for the period since August 5, 2015, a rating of 60 percent for the Veteran's back disability is granted. A higher rating, however, is not warranted, as there is no evidence of ankylosis of the entire spine. In contrast, for the period prior to August 5, 2015, the Board finds that a rating of 40 percent is warranted. In this regard, the Board finds that, during this period, the Veteran experienced a significant number of incapacitating episodes, but not to the point of more closely approximating the criteria for the maximum rating of 60 percent. Rather, the evidence shows that the Veteran was either employed or self-employed during the period prior to August 5, 2015. At his Board hearing, the Veteran testified that, during his last job, he missed one or two days a week. In the Board's estimation, this testimony is indicative that the Veteran's back disability resulted in the equivalent of a 40 percent reduction in earning capacity. Furthermore, the Board finds that the fact that the Veteran was able to work prior to August 5, 2015, is an indication that the Veteran's incapacitating episodes during this period were less severe than during the period since August 5, 2015. For these reasons, the Board finds that, for the period since August 5, 2015, the Veteran is entitled to a rating of 40 percent, but not higher, for his lumbar spine disability. A higher rating of 50 percent under the General Rating Formular for Diseases and Injuries of the Spine is not warranted, as there is no evidence of ankylosis. 4. Entitlement to an effective date prior to May 16, 2018 for service connection for radiculopathy of the right lower extremity. 5. Entitlement to an effective date prior to May 16, 2018 for service connection for radiculopathy of the left lower extremity. A June 2018 rating decision granted service connection for radiculopathy of both lower extremities, rated as 20 percent disabling, effective May 16, 2018. This effective date was based on the VA examination that first documented the radicular symptoms. The Veteran asserts that an earlier effective date is warranted or the grant of service connection. He has also appealed the rating assigned for the bilateral lower extremity radiculopathy. As the radiculopathy is a neurologic abnormalities associated with the service-connected back disability, it is encompassed by the claim of a higher rating for the latter disability. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Based on the evidence of record (discussed above), the Board finds that an earlier effective date is warranted for the Veteran's bilateral lower extremity radiculopathy, as the weight of the evidence clearly shows that the Veteran has experienced radicular symptoms prior to May 16, 2018. As discussed above in the section regarding the Veteran's back, an October 2011 VA treatment note reflects that the vet reported radiating pain into right posterior thigh, with occasional heel throbbing. Shortly thereafter, an August 2012 VA pain clinic note indicates that, most of the time, the pain radiates into the right greater than the left posterior thigh area. 04/27/2017, CAPRI, at 209-10. These earlier symptoms, which are secondary to the service-connected lumbar spine disability, are either indicative of, or analogous to, the service-connected radiculopathy. In view of this, the Board finds that an earlier effective date for the grant of service connection for bilateral lower extremity is warranted. An earlier effective is to be assigned on first instance by the Agency of Original Jurisdiction (AOJ) to preserve due process as an initial rating has yet to been assigned prior to May 16, 2018. REASONS FOR REMAND 1. Entitlement to service connection for TBI is remanded. The Veteran has not undergone a VA examination to specifically determine whether he experienced a TBI in service. While the lay evidence appears to suggest that he did and the Veteran is service-connected for symptoms that are consistent with a TBI (headaches and mental health impairment), the question of whether the Veteran experienced a TBI is a medical one. A VA examination is therefore necessary. 2. Entitlement to an increased rating for radiculopathy of the right lower extremity is remanded. 3. Entitlement to an increased rating for radiculopathy of the left lower extremity is remanded. As discussed above, the Board has determined that an earlier effective date for the grants of service connection for bilateral lower extremity radiculopathy is warranted. A specific earlier effective date as well as the initial rating for the earlier period are to be assigned on first instance by the AOJ. In view of this, the appropriate course of action is to defer adjudication of the issue of higher ratings for the bilateral lower extremity radiculopathy until ratings have been assigned for the period prior to May 16, 2018. 4. Entitlement to a TDIU for the period prior to April 3, 2017, is remanded. A July 2018 rating decision granted entitlement to a TDIU, effective April 3, 2017. At the time, the Veteran met the schedular criteria for consideration of a TDIU only from April 3, 2017, forward. The present Board decision is granting higher ratings for two disabilities as well as service connection for a third disability. As a result of these grants, the Veteran now meets the schedular criteria for the entire appeal period. Additionally, there is evidence of unemployability prior to April 3, 2017, to include hearing testimony suggesting that the Veteran's employment prior to November 2015 may have been marginal or in a protected environment. In view of the above, the appropriate course of action is to remand the issue of a schedular TDIU prior to April 3, 2017, for it to be adjudicated on first instance by the AOJ. The appeal is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon) for his claimed TBI. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran experienced a TBI in service? Please explain why or why not. **The examiner is to consider the Veteran's lay statements regarding TBI onset and symptomology. See 3/13/2012 VA 21-4138; 1/11/2017 Correspondence; 3/27/2019 Hearing Transcript, at 16-20.** If so, does he have any TBI residuals? In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/ current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Once an earlier effective date for the grants of service connection for bilateral lower extremity radiculopathy have been assigned, assign a disability rating for this disability for the period prior to May 16, 2018. (CONTINUED ON THE NEXT PAGE) 3. Adjudicate the issue of entitlement to a schedular TDIU for the period prior to April 3, 2017. Please note that the Veteran has provided hearing testimony suggesting that his employment prior to November 2015 was either marginal or in a protected environment. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.