Citation Nr: 21042021 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 18-05 058 DATE: July 11, 2021 ORDER An initial rating higher than 20 percent for cervical spine strain is denied. An increased rating of 30 percent, but no higher, for cervical spine strain is granted from January 30, 2020. An initial rating higher than 20 percent for lumbar spine arthritis with intervertebral disc syndrome is denied. An increased rating of 40 percent, but no higher, for lumbar spine arthritis with intervertebral disc syndrome is granted from September 20, 2017. An initial rating higher than 10 percent for sciatic radiculopathy of the left lower extremity is denied. An increased rating of 20 percent, but no higher, for sciatic radiculopathy of the left lower extremity is granted from September 20, 2017. An initial rating higher than 20 percent for left ankle sprain is denied. A total disability rating due to individual unemployability is granted from September 20, 2017. REMANDED Entitlement to an initial rating higher than 10 percent for left knee patellofemoral pain syndrome is remanded. Entitlement to a total disability rating due to individual unemployable before September 20, 2017, is remanded. FINDINGS OF FACT 1. From the effective date of July 26, 2016, the evidence is insufficient to establish that the Veteran's cervical spine strain manifested in forward flexion of the cervical spine to 15 degrees or less, or in ankylosis of the cervical spine. 2. Resolving any reasonable doubt in the Veteran's favor, the January 30, 2020 Board hearing is the earliest evidence sufficient to establish that the Veteran's cervical spine strain worsened to manifest in forward flexion of the cervical spine to 15 degrees or less. 3. From January 30, 2020, the evidence does not establish that the Veteran's cervical spine strain has manifested in unfavorable ankylosis of the cervical spine or in incapacitating episodes having a total duration of at least four weeks. 4. From the effective date of July 26, 2016, the evidence is insufficient to establish that the Veteran's lumbar spine arthritis with IVDS manifested in limitation in forward flexion of the thoracolumbar spine to 30 degrees or less; or, in favorable ankylosis of the thoracolumbar spine; or, in incapacitating episodes having a total duration of at least four weeks. 5. Resolving any reasonable doubt in the Veteran's favor, the September 20, 2017 notice of disagreement is the earliest evidence sufficient to establish that the Veteran's lumbar spine strain worsened to manifest in a disability picture approximating forward flexion of the thoracolumbar spine to 30 degrees or less. 6. From September 20, 2017, the evidence does not establish that the Veteran's lumbar spine arthritis with IVDS has manifested in ankylosis of the thoracolumbar spine or in incapacitating episodes having a total duration of at least six weeks. 7. From the effective date of July 26, 2016, the evidence is insufficient to establish that the Veteran's sciatic radiculopathy of the left lower extremity manifested in a disability picture approximating incomplete paralysis at a moderate severity. 8. Resolving any reasonable doubt in the Veteran's favor, the September 20, 2017 notice of disagreement is the earliest evidence sufficient to establish that the Veteran's sciatic radiculopathy of the left lower extremity had worsened to manifest in incomplete paralysis at a moderate severity. 9. From September 20, 2017, the evidence does not establish that the Veteran's sciatic radiculopathy of the left lower extremity has manifested in incomplete paralysis at a moderately severe severity. 10. Throughout the appeal period, the Veteran's left ankle has manifested in marked limitation of motion, including limited dorsiflexion and plantarflexion, weakness, and instability. 11. From September 20, 2017, the Veteran has two or more service-connected disabilities, one of which is rated at 40 percent or more, and which combine to 70 percent or more. 12. The evidence establishes that from September 20, 2017, the Veteran has not been able to secure or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 20 percent for cervical strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 2. The criteria for a rating of 30 percent, but no higher, for cervical strain have been met from January 30, 2020. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5243. 3. The criteria for an initial rating higher than 20 percent for lumbar spine arthritis with IVDS have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 4. The criteria for a rating of 40 percent, but no higher, for lumbar spine arthritis with IVDS have been met from September 20, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5243. 5. The criteria for an initial rating higher than 10 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 6. The criteria for a rating of 20 percent, but no higher, for sciatic radiculopathy of the left lower extremity have been met from September 20, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8520. 7. The criteria for an initial rating higher than 20 percent for left ankle sprain have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 8. The criteria for a total disability rating for individual unemployability due to service-connected disabilities have been met from September 20, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2013 to July 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for the above disabilities and assigning initial ratings. In March 2020, the Board remanded the matter for VA examinations to assess the current severity of the Veteran's conditions. For the claims for which there was compliance with the directives of the prior decision, the Board will now adjudicate the merits of those claims. Dyment v. West, 13 Vet. App. 141, 14647 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran seeks increased initial ratings and a total disability rating due to individual unemployability. Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where a Veteran challenges the initial rating of a disability for which the Veteran has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating a disability, the Board considers the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Cervical Spine The Veteran originally appealed the assignment of a 20-percent initial rating for his service-connected cervical strain from the effective date of July 26, 2017. Following the Board's prior remand, the RO issued a September 2020 rating decision granting a 30-percent rating from August 18, 2020, the date of the newest VA examination. The Veteran requests that the new 30-percent be assigned from September 2017. Moreover, as the increased rating did not constitute a grant of complete relief, the Board will consider entitlement to a higher rating. See AB v. Brown, 6. Vet. App. 35, 38 (1993). The Veteran's cervical strain is rated under Diagnostic Code (DC) 5237, which in turn provides for the condition to be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20-percent rating is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30-percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less; or, where there is favorable ankylosis of the entire cervical spine. A 40-percent rating is warranted where there is unfavorable ankylosis of the entire cervical spine. A 100-percent rating, which is the highest available, is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, normal extension is 0 to 45 degrees, normal left and right lateral flexion are 0 to 45 degrees, and normal left and right lateral rotation are 0 to 45 degrees, and the normal combined range of motion is 340 degrees. Id., General Rating Formula, Note (2). Moreover, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DC 5243, General Rating Formula for Diseases and Injuries of the Spine, Note (5). At the most recent medical examination, the Veteran was diagnosed with cervical intervertebral disc syndrome (IVDS) as a progression of his service-connected cervical strain. Thus, a rating for his cervical IVDS is potentially available as an alternative to the rating under the General Rating Formula, with the Board applying whichever evaluation will result in the highest overall rating. See 38 C.F.R. § 4.71a, DC 5243. (Separate ratings under each criteria are not available, as that would compensate the Veteran multiple times for the same symptoms, a practice proscribed by 38 C.F.R. § 4.14.) Intervertebral disc syndrome is rated under DC 5243, which provides for a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. (The Board notes that though a new amendment to DC 5243, effective February 7, 2021, requires evidence of "disc herniation with compression and/or irritation of the adjacent nerve root," in this case the most recent examination found that the Veteran's condition is "pinching the nerve root in the spinal column," thereby satisfying the requirement for a potential rating under DC 5243. SCHEDULE FOR RATING DISABILITIES: MUSCULOSKELETAL SYSTEM AND MUSCLE INJURIES, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243).) Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 40-percent rating is warranted for 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, the highest rating available under this schedule, is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). Turning to the evidence from the effective date of July 26, 2016, a VA examination was provided on October 12, 2016. The Veteran reported severe pain, worsened with flexion and rotation, along with flare-ups of soreness, discomfort, and difficulty turning his head. Range of motion with repeated use and flare-ups was estimated to be flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion each to 15 degrees, and right and left lateral rotation each to 45 degrees. The examiner noted that x-rays showed muscle spasms had resulted in an abnormal straightening of the spine. There were no signs or symptoms of radiculopathy and there was no IVDS. Functional impact was noted to be "impaired turning of the head." In his September 20, 2017 notice of disagreement, the Veteran stated that his neck pain made it uncomfortable to sleep and work, and that it was painful and stiff when trying to turn and look while driving. At a January 30, 2020 Board hearing before the undersigned Veterans Law Judge, the Veteran reiterated that his neck was painful during sleep and when turning his head during driving. As directed by the Board's prior March 2020 decision, a new VA examination was provided on August 18, 2020. A new diagnosis of IVDS and cervical radiculopathy was made. The Veteran complained of worsening pain, weakness, and loss of range of motion in the posterior neck. During flare-ups, he could not turn his head all the way. Range of motion during flare-ups was estimated to be flexion to 10 degrees, extension to 10 degrees, right and left lateral flexion each to 10 degrees, and right and left lateral each to 20 degrees. There was no ankylosis. IVDS was noted to have not required prescribed bedrest in the prior 12 months. The Veteran related he had approximately two episodes a year of "throwing [his] neck out," brought on by carrying heavy objects or after more than 10 hours of sitting or standing, which resulted in being bedbound for around one week. The examiner remarked that in order to prevent flare-ups, the Veteran should avoid occupational tasks requiring prolonged sitting and standing, or occupational tasks requiring repeated movements of the neck to turn the head such as reading screens or confirming commands. In an October 2020 statement, the Veteran requested that the newly increased 30-percent rating from August 18, 2020, be extended back to September 2017. Based on all the evidence, the Board finds that the higher rating of 30 percent is warranted from January 30, 2020. As found by the Board's prior March 2020 decision, the Veteran competently testified that his neck disability had worsened since his October 2016 VA examination, which was recognized by the RO's award of the increased rating from the date of the new VA examination, August 18, 2020. In assigning a rating, however, VA must consider the earliest evidence showing a worsening of the service-connected condition. 38 C.F.R. § 3.400(o)(2); see Bria v. Wilkie, 2021 U.S. App. Vet. Claims LEXIS 50, at *22-23 (January 15, 2021) (acknowledging that the Board must consider evidence of the earliest date of entitlement to an increased rating rather than assigning by rote the date of a formal medical examination). In this case, resolving any reasonable doubt in the Veteran's favor, the Board finds that the January 30, 2020 Board hearing is the earliest evidence sufficient to establish worsening of his cervical spine condition. 38 C.F.R. §§ 3.400(o)(2), 4.3. The Board acknowledges the Veteran's request for an earlier date of entitlement dating back to September 2017. Though the Veteran did file a notice of disagreement on that date, he alleged neck symptoms including discomfort while sleeping and working and a stiff neck that was painful to turn while driving, all of which were symptoms acknowledged within the October 12, 2016 VA examination and therefore were contemplated by the initial rating. Therefore, the evidence within the September 2017 was not evidence of worsening. See 38 C.F.R. § 3.400(o)(2). The Board further finds that an initial rating higher than 20 percent from the effective date of July 26, 2016, is not warranted. A rating higher than 20 percent requires evidence of forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. Here, there is not sufficient evidence to establish a disability picture of the 30-percent severity until January 30, 2020. 38 C.F.R. § 4.71a, DC 5243, General Rating Formula for Diseases and Injuries of the Spine. Additionally, the Board finds that a rating higher than 30 percent from January 30, 2020, is not warranted. A rating higher than 30 percent requires evidence of unfavorable ankylosis of the entire cervical spine, and here the evidence shows that the Veteran does not have ankylosis in the cervical spine. 38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the Spine. The Board also notes that a rating higher than 30 percent would not be warranted under the Formula for Rating IVDS, as there is insufficient evidence to establish that the Veteran's IVDS manifested in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks in a 12-month period. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS Based on Incapacitating Episodes. Accordingly, an initial rating higher than 20 percent is denied; and, a 30-percent rating, but no higher, is granted from January 30, 2020. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5243. 2. Lumbar Spine with IVDS The Veteran originally appealed the assignment of a 20-percent initial rating for his service-connected cervical strain from the effective date of July 26, 2017. Following the Board's prior remand, the RO issued a September 2020 rating decision granting a 40-percent rating from August 18, 2020, the date of the newest VA examination. The Veteran requests that the new 40-percent rating be assigned from September 2017. Moreover, as the increased rating did not constitute a grant of complete relief, the Board will consider entitlement to a higher rating. See AB v. Brown, 6. Vet. App. 35, 38 (1993). The Veteran's lumbar spine degenerative disc disease with intervertebral disc syndrome (IVDS) is rated under Diagnostic Code (DC) 5243. Under DC 5243, IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20-percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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 where there is forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50-percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100-percent rating, which is the highest available, is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5243, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, normal extension is 0 to 30 degrees, normal left and right lateral flexion are 0 to 30 degrees, and normal left and right lateral rotation are 0 to 30 degrees. Id., General Rating Formula, Note (2). Moreover, as discussed above, for VA compensation purposes unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DC 5243, General Rating Formula for Diseases and Injuries of the Spine, Note (5). As discussed above, under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10-percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 40-percent rating is warranted for 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, the highest rating available under this schedule, is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). Turning to the evidence from the effective date of July 26, 2016, at an October 12, 2016 VA examination the Veteran reported flare-ups trouble bending, sleeping, moving, and sharp pains. Range of motion during flare-ups was estimated to be flexion to 60 degrees, extension to 10 degrees, bilateral lateral flexion each to 15 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. There was tenderness but it did not result in an abnormal gait or spinal contour. There was no ankylosis. IVDS was present but had not manifested in episodes of acute signs and symptoms requiring prescribed bedrest over the prior 12 months. The overall functional impact included impairment in physical activities of employment such as heavy lifting and carrying, prolonged bending, or squatting. A VA treatment record from August 25, 2017 found the Veteran reporting constant pain worsened with walking, sitting, and bending. Range of motion was found to be "W[ithin] N[ormal] L[imits]." In the Veteran's September 20, 2017 notice of disagreement, the Veteran stated his lumbar spine was such that it was "unbearable when I try to do anything active" and "it is [affecting] my work and daily life." A January 26, 2018 VA treatment note found lumbar flexion to 20 degrees, extension of 10 degrees, and lateral rotation within normal limits. On July 13, 2018, the Veteran reported forward flexion causing worse pain, extension less painful than flexion, and no aggravation with lateral rotation. The pain was described as shooting, stabbing, sharp, tender, and miserable such that it caused difficulty sleeping. Bowel or bladder incontinence was denied. An April 3, 2019 VA treatment note found lower back range of motion "10-15 degrees all directions" with discomfort. At the January 30, 2020 Board hearing, the Veteran stated that whenever he had back pain, he had to lie down. Regarding how long he had to rest, he stated there was no typical pattern for the amount of time. As directed by the Board's prior March 2020 decision, a new VA examination was provided on August 18, 2020. The Veteran reported a constant throbbing, burning pain that was worse with prolonged standing, walking, sitting, and with any bending or lifting. He reported flare-ups with sharp pains at the side of his joints. The examiner estimated that range of motion during flare-ups during would be flexion to 10 degrees, and all other motions to 5 degrees. There was no ankylosis. Radiculopathy was reported, without other neurologic abnormalities. The Veteran regularly used a back brace. The examiner stated that in order to avoid flare-ups, the Veteran should avoid occupational tasks requiring extended sitting, extended standing, extended walking, or bending to lift objects heavier than 10 pounds. In the October 2020 statement, the Veteran requested that the newly increased 40-percent rating from August 18, 2020, be extended back to September 2017. Based on all the evidence of record, the Board finds that a 40 percent rating is warranted from September 20, 2017. The Board's prior March 2020 decision found that the Veteran had competently reported worsening of his lumbar spine disability since the October 2016 VA examination. Though August 18, 2020, the date of the new VA examination, was assigned as the date for the increased rating, all of the evidence must be considered to ascertain the earliest date on which the condition worsened. 38 C.F.R. § 3.400(o)(2); see Bria, 2021 U.S. App. Vet. Claims LEXIS 50, at *22-23. In this case, resolving any reasonable doubt in the Veteran's favor, the Board finds the September 20, 2017 notice of disagreement is sufficient evidence to establish worsening of the lumbar spine disability. Within his notice of disagreement, the Veteran competently stated that he had "unbearable" pain when trying to do "anything active" and that his work and daily life was affected. 38 C.F.R. § 4.1. Prior to that date, the Veteran had related at the October 2016 VA examination to have trouble moving, bending, and lifting, but not at the severity described in the notice of disagreement. Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a 40-percent rating dating back to September 20, 2017. 38 C.F.R. §§ 3.400(o)(2), 4.3. The Board further finds, however, that from the effective date of July 26, 2016, an initial rating higher than 20 percent is not warranted. Under the General Rating Formula, a rating higher than 20 percent requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less or of favorable ankylosis. Even accounting for the Veteran's reports of flare-ups, the evidence during this period reflects flexion was not limited to 30 degrees or less. Under the Formula for Rating IVDS, a rating higher than 20 percent requires evidence of incapacitating episodes having a total duration of at least 4 weeks, and there is no such evidence in this case. 38 C.F.R. § 4.71a, DC 5243. Additionally, the Board finds that from September 20, 2017, a rating higher than 40 percent is not warranted. Under the General Rating Formula, a rating higher than 40 percent requires evidence of ankylosis of the thoracolumbar spine, but here the evidence has not ever shown ankylosis of the lumbar spine. Under the Formula for Rating IVDS, there is no evidence that the Veteran's IVDS manifested in episodes of acute signs and symptoms requiring prescribed bedrest of at least 6 weeks during a 12-month period, which would be required to support a rating higher than 40 percent. 38 C.F.R. § 4.71a, DC 5243. Accordingly, an initial rating higher than 20 percent is denied; and, a 40-percent rating, but no higher, is granted from September 20, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.71a, DC 5243. 3. Left Lower Extremity Radiculopathy The Veteran originally appealed the assignment of a 10-percent initial rating for his service-connected sciatic radiculopathy of the left lower extremity from the effective date of July 26, 2017. Following the Board's prior remand, the RO issued a September 2020 rating decision granting a 20-percent rating from August 18, 2020, the date of the newest VA examination. The Veteran requests that the new 20-percent rating be assigned from September 2017. Moreover, as the increased rating did not constitute a grant of complete relief, the Board will consider entitlement to a higher rating. See AB v. Brown, 6. Vet. App. 35, 38 (1993). The Veteran's left lower extremity radiculopathy is rated under DC 8520, for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Under DC 8520, a 20-percent rating is warranted where incomplete paralysis is of a moderate severity; a 40-percent rating is warranted where incomplete paralysis is of a severe severity, with marked muscular atrophy; and an 80-percent rating, which is the highest available under this schedule, is warranted where there is complete paralysis; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a. At a VA examination on October 12, 2016, the Veteran was found to have mild numbness and mild paresthesias and/or dysesthesias in the left lower extremity. Overall, the radiculopathy at the sciatic nerve was rated at the mild severity. In his September 20, 2017 notice of disagreement, the Veteran stated that his radiculopathy was painful and affected his work and daily life. At the January 30, 2020 Board hearing, the Veteran testified that he had shooting sciatic pain. As directed by the Board's prior March 2020 decision, a new VA examination was provided on August 18, 2020. The Veteran stated he has daily shooting pain and persistent numbness and tingling in his leg. Upon physical examination, left lower extremity sciatic symptoms were found to be mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Overall, the severity was graded at moderate. In the October 2020 statement, the Veteran requested that the newly increased 20-percent rating from August 18, 2020, be extended back to September 2017. Based on all the evidence, the Board finds that the 20-percent rating is warranted from September 20, 2017. As found by the Board's prior March 2020 decision, the Veteran competently testified that his left lower extremity radiculopathy had worsened since his October 2016 VA examination. The Board finds that the earliest evidence to establish worsening of the Veteran's left lower extremity radiculopathy is the September 20, 2017, because on that date the Veteran alleged in his notice of disagreement that his left lower extremity radiculopathy was causing pain, a symptom not present in the evidence prior to that date. Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that September 20, 2017 is the earliest date on which there is evidence establishing a worsening of the Veteran's left lower extremity radiculopathy. 38 C.F.R. §§ 3.400(o)(2), 4.3; see Bria, 2021 U.S. App. Vet. Claims LEXIS 50, at *22-23. The Board further finds that from the effective date of July 26, 2016, a rating higher than 10 percent is not warranted. The evidence from that period does not support that the left lower extremity radiculopathy was manifesting in incomplete sciatic paralysis at a moderate degree, which is required to warrant a higher rating. 38 C.F.R. § 4.124a, DC 8520. Moreover, from September 20, 2017, the evidence does not support a rating higher than 20 percent. For a higher rating, there must be evidence of incomplete paralysis at a moderately severe severity, and the evidence of record supports only a moderate severity. 38 C.F.R. § 4.124a, DC 5820. Accordingly, an initial rating higher than 10 percent is denied; and, a 20-percent rating, but no higher, is granted from September 20, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.124a, DC 8520. 4. Left Ankle Sprain The Veteran appeals the assignment of an initial 20-percent rating for his left ankle sprain. The Veteran's ankle sprain is rated under DC 5271, for limited motion of the ankle. 38 C.F.R. § 4.71a. Amendments to this regulation became effective February 7, 2021. For the portion of the appeal period from that February 7, 2021, the Board will consider the Veteran's claim under the previous and current regulations, applying whichever regulations are most favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327, 1328 (2003). Under the pre-amended version of DC 5271, a 10-percent rating was warranted where limitation of motion was moderate, and a 20-percent rating, the highest available under these criteria, was warranted where limitation of motion was marked. 38 C.F.R. § 4.71a (2020). The amended version defines moderate limitation of motion as less than 15 degrees dorsiflexion or less than 30 degrees plantarflexion, and marked limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantarflexion. SCHEDULE FOR RATING DISABILITIES: MUSCULOSKELETAL SYSTEM AND MUSCLE INJURIES, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5271). Turning to the evidence from the effective date of July 26, 2016, a VA examination was provided on October 12, 2016. The Veteran reported being unable to walk more than 15 minutes without pain or needing to limp. He had stiffness, locking, giving out, and weakness, and the ankle rolled easily. There were flare-ups of sharp pain. The Veteran had 0 degrees of dorsiflexion, without ankylosis, and plantarflexion was estimated to be to 35 degrees during flare-ups. Additional factors included weakened movement and disturbance of locomotion. Instability was suspected. In his September 20, 2017 notice of disagreement, the Veteran wrote that his ankle is painful, stiff, and affects his work and daily life. At the January 30, 2020 Board hearing, the Veteran testified his ankle is painful, has limited motion, and "give[s] out." As directed by the Board's prior March 2020 decision, a new VA examination was provided on August 18, 2020. The Veteran reported pain with walking, stairs, and bending, and said he was not able to sustain prolonged standing or walking without feeling severe pain. The painful episodes sometimes happened daily if he had to walk for lengthy periods, lasting up to an hour, and could occur multiple times a day. During flare-ups, dorsiflexion was estimated to be to 5 degrees and plantarflexion was estimated to be to 15 degrees. There was no ankylosis. The functional impacts included avoiding occupational tasks requiring prolonged standing, sitting, and walking for longer than 30 minutes at a time. As discussed above, the 20-percent rating is the maximum available under DC 5271. The functional limitations described by the Veteran, including impairments associated with limited motion, weakness, and instability in the ankle, are the types of functional limitations intended to be compensated for by the schedular rating of DC 5271. 38 C.F.R. § 4.71a. The evidence has not shown ankylosis, precluding a higher rating under DC 5270. See id. The Board is sympathetic to the Veteran's descriptions of the impact of his ankle disability on his daily and work life, but because the symptoms shown by the evidence of record are contemplated by the rating assigned, a higher rating is not warranted. The Board is bound to apply the regulations as written, and here the maximum rating has already been assigned. Id. Accordingly, an initial rating higher than 20 percent for left ankle sprain is denied. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5271. 5. Total Disability Rating Due to Individual Unemployability The Board's prior March 2020 decision found entitlement to a total disability rating due to individual unemployability (TDIU) part and parcel of the Veteran's claims for higher initial ratings. On remand, the RO issued a September 2020 rating decision granting a TDIU from August 18, 2020. This was not, however, a complete grant of relief, and therefore the Board will now consider entitlement to a TDIU from July 26, 2016, the effective date of service connection for the underlying initial-rating claims, until August 18, 2020. See Harper v. Wilkie, 30 Vet. App. 356, 361 (2018) (citing Palmatier v. McDonald, 626 F. App'x 991, 994 (Fed. Cir. 2015)). A TDIU may be assigned if 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. 38 C.F.R. § 4.16(a). To be considered for assignment of a schedular TDIU the Veteran's service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such 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. Id. The Veteran's service-connected disabilities from July 26, 2016, until August 18, 2020, include the lumbar spine disability, rated at 20 percent from July 26, 2016, and now at 40 percent from September 20, 2017; cervical strain, rated at 20 percent from July 26, 2016, and now at 30 percent from January 30, 2020; left ankle sprain, rated at 20 percent from July 26, 2016; sciatic radiculopathy of the left lower extremity, rated at 10 percent from July 26, 2016, and now at 20 percent from September 20, 2017; left knee patellofemoral syndrome, rated at 10 percent from July 26, 2016; and, left hamstring strain, rated at 10 percent from July 26, 2016. Thus, while the Veteran's rating has combined to 60 percent since July 26, 2016, there has not been at least one disability rated at 40 percent or more until September 20, 2017. Accordingly, the Board will consider entitlement to a schedular TDIU from September 20, 2017 until August 18, 2020, and entitlement to an extraschedular TDIU before September 20, 2017, will be discussed in the remand section below. A Veteran is unemployable if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A substantially gainful occupation is one earning more than marginal income (outside of a protected environment), as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray v. Wilkie, 31 Vet. App. 58, 7273 (2019). In evaluating a Veteran's ability to secure and follow a substantially gainful occupation, consideration may be given to his level of education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran has the physical and mental ability to perform the types of activities required by the occupation at issue, not whether the Veteran can find employment. Id.; 38 C.F.R. § 4.16(a). Turning to the evidence, the Veteran last worked full-time in August 2016 as a mechanic. He has one year of college education. He has experience as a tank mechanic from his time in service. At the January 30, 2020 Board hearing, the Veteran stated his work experience is in physical labor, including work as a mechanic and in construction, which requires bending, lifting, reaching, and carrying weight, activity he can no longer do due to his service-connected disabilities. He added that he had pursued vocational rehabilitation through VA but there was difficulty finding a suitable position because even sitting is difficult for long period of time, in addition to his limited experience doing desk work. On review of all the evidence of record, the Board finds that the Veteran's service-connected disabilities have rendered him unemployable since September 20, 2017. As discussed above, the evidence during this period shows that the Veteran's lumbar spine disability limited his motion and impaired his ability to do physical employment such as heavy lifting, heavy carrying, bending, and squatting. Doing anything active caused unbearable pain, requiring the Veteran to lie down. The Veteran's cervical spine disability impairs his ability to turn his head. The left-ankle disability prevents dorsiflexion and causes his ankle to give out and roll. Evidence regarding the left knee shows that there was pain with walking and bending and that the knee would give out, affecting his ability to walk or stand for longer than 20 minutes. Likewise, evidence regarding the left hamstring indicates the Veteran is limited in prolonged standing, walking, lifting, carrying, and impact activities. The Board finds that the combined functional impairment created by the Veteran's service-connected disabilities would preclude obtaining and maintaining substantially gainful employment in the types of employment in which he has training, skills, and prior work experience. Ray, 31 Vet. App. at 72-73. Accordingly, a TDIU is granted from September 20, 2017. Id.; 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS FOR REMAND 6. Left Knee Patellofemoral Pain Syndrome Regarding the Veteran's claim for an initial rating higher than 10 percent for left knee patellofemoral pain syndrome, though a new VA examination was provided in August 2020 as directed by the Board's prior March 2020 decision, the Board finds that remand is required to address an inconsistency in that examination report. At the examination, the Veteran stated that "[he] can't bend [his] knee during a severe flare up," but the examiner estimated that during flare-ups flexion and extension would be to 110 degrees. Moreover, an October 2016 VA examiner estimated that during flare-ups the Veteran's flexion and extension would be limited to 45 degrees, and the August 2020 VA examiner found that the Veteran's disability had worsened but still provided a range-of-motion estimate improved from the estimate in October 2016. Thus, the Board finds the August 2020 VA examiner's estimate of range of motion during flare-ups inconsistent both with the Veteran's competent lay statement and with the examiner's finding that the Veteran's condition had worsened over time. Accordingly, a new VA examination should be provided. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 7. TDIU before September 20, 2017 As discussed above, for the period from July 26, 2016, until September 20, 2017, the Veteran did not have a single service-connected disability rated 40 percent or higher, so a TDIU may not presently be granted under 38 C.F.R. § 4.16(a). Still, given that the evidence indicates the Veteran may have been unemployable due to service-connected disabilities during this period, the claim will be referred to the Director of the Compensation Service to consider the merits of an extraschedular TDIU for this period. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of his service-connected left knee patellofemoral pain syndrome. The examination must do complete range-of-motion studies, including active motion, passive motion, and weight- and non-weight bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. It is noted that the Veteran has stated he is unable to move his knee at all during severe flare-ups. Moreover, the Veteran's disability has been noted to have worsened over the years, and at an October 2016 VA examination the estimated motion during flare-ups was limited to 45 degrees. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, the examiner should provide an estimate of the additional impairment due to flare-ups based on the Veteran's statements and the other evidence of record. 2. Refer to the Director, Compensation Service entitlement to an extraschedular TDIU for the period from July 26, 2016, until September 20, 2017. 3. After the above development and any other development deemed necessary is completed, readjudicate the Veteran's claims. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, Associate 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.