Citation Nr: 22012475
Decision Date: 03/04/22	Archive Date: 03/04/22

DOCKET NO. 14-38 170
DATE: March 4, 2022

ORDER

Entitlement to an initial rating of 20 percent for the period prior to April 14, 2014 for left shoulder tendonitis is granted.

Entitlement to an initial rating in excess of 20 percent for left shoulder tendonitis for the period since April 14, 2014, is denied.

Entitlement to an initial 20 percent rating, but no higher, for the period prior to April 14, 2014, for intervertebral disc syndrome (IVDS) of the lumbar spine is granted.

Entitlement to a rating in excess of 20 percent for IVDS for the period from April 14, 2014, to August 6, 2019, is denied.

Entitlement to a rating in excess of 40 percent for IVDS for the period since August 6, 2019, is denied.

Entitlement to a separate 20 percent rating for right lower extremity radiculopathy from April 14, 2014, is granted, subject to the laws and regulations governing monetary awards.  

Entitlement to a rating in excess of 20 percent for bilateral lower extremity radiculopathy is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.

FINDINGS OF FACT

1. Prior to April 14, 2014, the Veteran's left shoulder symptoms manifested with painful motion with no evidence of greater impairment.

2. Throughout the entire appeal period, the Veteran's left shoulder symptoms manifested by range of motion (ROM) limited at the shoulder level or below shoulder at its most severe with no evidence of greater impairment.  

3. For the period prior to April 14, 2014, the Veteran's IVDS was manifested by pain and limitation of motion but not by forward flexion of the thoracolumbar spine to 30 degrees, favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes resulting in doctor-prescribed bed rest and treatment by a physical with a duration of 4 weeks or more during any 12-month period.

4. From April 14, 2014, to August 6, 2019, the Veteran's IVDS manifested with forward flexion of 55 degrees and a combined ROM of 145 degrees at its most severe with no evidence of greater impairment.

5. From August 6, 2019, onward, the Veteran's IVDS manifested with forward flexion of 30 degrees at its most severe with no evidence of greater impairment.  

6. As of April 14, 2014, the Veteran experienced right lower extremity radiculopathy attributable to his low back disability that manifested with incomplete moderate paralysis of the sciatic nerve with no evidence of greater impairment.   

7. Throughout the entire appeal period, the Veteran's bilateral lower extremity radiculopathy manifested with incomplete moderate paralysis of the sciatic nerve with no evidence of greater impairment.

8. Throughout the entire appeal period, the Veteran was not precluded from participating in substantially gainful employment due to his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating of 20 percent prior to April 14, 2014, for left shoulder tendonitis are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201.

2. The criteria for entitlement to an initial rating in excess of 20 percent for left shoulder tendonitis for the period since April 14, 2014, are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201.

3. The criteria for entitlement to an initial 20 percent rating for IVDS of the lumbar spine for the period prior to April 14, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243.

4. The criteria for an initial rating in excess of 20 percent from April 14, 2014, to August 6, 2019, for IVDS of the lumbar spine are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243.

5. The criteria for an initial rating in excess of 40 percent for the period since August 6, 2019, for IVDS of the lumbar spine are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243.

6. The criteria for entitlement a separate 20 percent rating for right lower extremity radiculopathy from April 14, 2014, are met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

7. The criteria for entitlement to a rating in excess of 20 percent for bilateral lower extremity radiculopathy are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8525.

8. The criteria for entitlement to a TDIU due to service-connected disabilities are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the United States Army from November 1976 to November 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

On his September 2014 Substantive Appeal Form, the Veteran indicated he wanted a Board Videoconference Hearing.  The Veteran was scheduled for a hearing on November 1, 2017.  A notification letter was sent to the address of record on October 2, 2017, and the Veteran returned the portion that indicated he would attend the hearing.  He did not attend the November 1, 2017, hearing and did not indicate a desire to reschedule.  Accordingly, the Veteran's hearing request is considered withdrawn and the appeal will proceed.  See 38 C.F.R.§ 20.704 (d).

These matters were remanded in May 2019 and December 2019 for additional development.  

The Board notes that the Veteran's claim of entitlement to an effective date of June 22, 2010 for the assignment of a 20 percent rating for left lower extremity radiculopathy was granted in a December 2021 rating decision.  Thus, this claim is no longer on appeal and the Board does not have jurisdiction at this time.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200.

In the December 2021 rating decision, the RO also granted a 40 percent rating for IVDS, effective August 6, 2019.

The Board notes that the increase from 20 to 40 percent for the IVDS disability did not constitute a full grant of the benefits sought. Accordingly, the issue of entitlement to a rating in excess of 40 percent for IVDS for the period since August 6, 2019, remains in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

Higher Initial Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others.  The United States Court of Appeals for Veterans' Claims (the Court) since has extended this practice even to established ratings, not just initial ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Board notes that the regulations for rating musculoskeletal injuries have changed effective February 7, 2021.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation specifically provides otherwise.  See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit).  However, the Board is not precluded from applying prior versions of the applicable regulations to the period on or after the effective date of the new regulation if the prior versions were in effect during the pendency of the appeal.  See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997)."  As there is no indication that the rating criteria amendments were intended to be applied retroactively, the changes do not apply before the date they became effective.  See Kuzma, 341 F.3d at 1329.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).

Left Shoulder 

The Veteran contends that his left shoulder symptomology is worse than the ratings currently assigned.  By way of history, the Veteran filed his service connection claim in June 2010.  The October 2011 rating decision granted service connection and assigned a 10 percent rating effective June 22, 2010.  The Veteran timely appealed that determination to the Board. During the pendency of this appeal, a July 2014 rating decision increased the rating to 20 percent effective April 14, 2014.   

Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Code 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203).

Diagnostic Code 5201 is used to evaluate injuries resulting in limited motion of the arm.  A 20 percent rating is warranted for limitation of motion of either arm at shoulder level, or midway between side and shoulder level of the minor arm.  A 30 percent rating is warranted for motion limited to midway between side and shoulder level for the major arm, or to 25 degrees from the side for the minor arm.  A 40 percent rating is the maximum schedular rating for limitation of motion of the arm, and is warranted for limitation of motion to 25 degrees from the side for the major arm. 38 C.F.R. § 4.71a, DC 5201.  The terms "major" and "minor" are used in the rating criteria to refer to the dominant or non-dominant upper extremity. 38 C.F.R. § 4.69.  The evidence demonstrates that the Veteran's right arm is his dominant upper extremity.  See August 2019 VA examination.  

It is noted that during the pendency of this appeal the rating code pertaining to DC 5201 was amended.  Specifically, a 20 percent rating is warranted for either arm at shoulder level (defined as flexion and/or abduction limited to 90 degrees) or midway between the side and shoulder level of the minor arm (defined as flexion and/or abduction limited to 45 degrees).  A 30 percent rating is warranted for motion limited to midway between side and shoulder level for the major arm, or to 25 degrees from the side for the minor arm.  A 40 percent rating is the maximum schedular rating for limitation of motion of the arm, and is warranted for limitation of motion to 25 degrees from the side for the major arm.  See 85 Fed. Reg. 76,453 (November 30, 2020).

As noted above, where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003).

However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's left shoulder disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran.  Id.

Standard range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. Id.

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59 (2017).

The Board notes that 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part: "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011).

Factual History

A review of the post service treatment records note complaints and treatment for left shoulder pain.  

The Veteran underwent a VA examination in June 2011.  He was diagnosed with left shoulder tendonitis.  He also reported experiencing weakness, stiffness, swelling, lack of endurance, fatigability, and pain in his left shoulder.  He also endorsed experiencing flare ups (8/10) up to three times a day lasting several hours.  He further experiencing the following functional limitations: no heavy lifting.  Clinical examination revealed ROM measurements of flexion up to 160 degrees, abduction up to 140 degrees, and external and internal rotation up to 45 degrees.  Repetitive testing revealed additional ROM limitation of flexion up to 155 degrees, abduction up to 130 degrees, external rotation up to 40 degrees and internal rotation up to 45 degrees.  The examiner noted that pain had the major functional impact of the left shoulder.  

The Veteran underwent a second VA examination in April 2014.  He was diagnosed with left shoulder tendonitis.  He also reported experiencing pain and weakness and being unable to lift his shoulder.  He endorsed flare ups of severe pain.  Clinical examination revealed ROM measurements of flexion up to 85 degrees and abduction up to 80 degrees with objective evidence of painful motion.  Repetitive use testing could not be conducted because the Veteran stated that the shoulder movements caused severe pain.  The examiner noted the following additional functional loss: less movement than normal, pain on movement.  Muscle strength testing revealed active movement against some resistance on flexion and abduction.  No ankylosis of the shoulder joint was noted.  The examiner noted a history of mechanical symptoms (clicking, catching, etc.), but found no history of recurrent dislocation of the glenohumeral joint.  In addition, the examiner found no acromioclavicular (AC) joint condition or other impairment of the clavicle or scapula.  The Veteran reported a 2006 tendon repair of the left shoulder with residual symptoms of daily pain and being unable to move the left arm.  The examiner noted the following functional impairment: [the Veteran] is able to lift or hold objects with the left hand, but was unable to reach overhead.

The Veteran underwent a third VA examination in August 2019.  He was diagnosed with left shoulder tendonitis, status post AC repair.  He reported experiencing shoulder pain and stiffness.  He also endorsed flare ups occurring intermittingly about four times a week with moderate pain and stiffness that last up to a day.  These flare ups are precipitated by heavy lifting, driving, and typing which is alleviated by medication.  He also endorsed additional functional loss due to pain and stiffness contributing to his limited ROM.  Clinical examination revealed ROM measurements of flexion and abduction up to 75 degrees, and external and internal rotation up to 55 degrees with pain noted on examination that caused functional loss on all planes of measurement.  The examiner found additional ROM limitations of flexion and abduction up to 70 degrees, and external and internal rotation up to 50 degrees based on observed repetitive use.  Additional ROM limitations of flexion and abduction up to 65 degrees, and external and internal rotation up to 50 degrees based on pain due to repetitive use was noted.  Regarding flare ups, the examiner found the following additional ROM limitations of flexion and abduction up to 60 degrees, and external and internal rotation up to 50 degrees due to pain and lack of endurance.  Muscle strength was found to be normal, with no evidence of atrophy.  No evidence of ankylosis was observed or noted.  The examiner noted no evidence of a rotator cuff condition or shoulder instability, dislocation or labral pathology.  Clinical examination revealed tenderness on palpation of the left AC joint; however, the examiner noted no AC joint condition or other impairment of the clavicle or scapula.  No loss of head, nonunion, fibrous union, or malunion of the humerus with moderate or marked deformity was noted.  The following functional impact was noted: shoulder pain, stiffness, limited ROM, difficulty with heavy lifting over 15 lbs., or repetitive motion over 15 minutes.  The examiner noted objective evidence of pain on passive ROM and on non-weight bearing testing of the left shoulder.  In addition, he noted passive non-weight bearing motion resulted in shoulder pain, stiffness, limited ROM, difficulty with heavy lifting over 25 lbs., or repetitive motion over 15 minutes.  

The Veteran underwent a fourth VA examination in September 2020.  He was diagnosed with left shoulder tendonitis.  He reported experiencing worsening daily shoulder pain, but denied flare ups.  He als reported additional functional loss due to reaching, sleeping, and lifting.  Clinical examination revealed ROM measurements of flexion up to 70 degrees, abduction up to 100 degrees, external rotation up to 90 degrees and internal rotation up to 22 degrees.  Pain was noted on flexion, abduction, and external rotation.  Observed repetitive-use testing could not be performed due to the Veteran's pain complaints.  Regarding repetitive use, the examiner noted additional ROM limitations of flexion up to 65 degrees, abduction up to 95 degrees, external rotation up to 85 degrees, and internal rotation up to 17 degrees due to pain, fatigue, weakness, lack of endurance and incoordination.  Regarding flare ups, the examiner noted no additional ROM limitations.  Muscle strength was noted to be active movement against some resistance, but no evidence of atrophy was found.  No evidence of ankylosis was noted by the examiner.  While evidence of a rotator cuff condition was suspected, there was no evidence found of shoulder instability, dislocation, labral pathology, recurrent dislocation of the glenohumeral joint, or a clavicle, scapula, AC or sternoclavicular joint condition.  In addition, the Veteran was not found to have loss of head, nonunion, fibrous union or malunion of the humerus with moderate or marked deformity.  The following functional impact was noted:  exertional limitations of lifting 10 lbs. or less; no overhead or forward reaching.  The examiner found objective evidence of pain on non-weight bearing.  However, she did not perform passive ROM testing for the left shoulder, stating that it could not be performed or was medically unnecessary.  

A retrospective VA opinion was issued in September 2020.  Regarding repetitive use, the examiner found additional ROM limitations of 5 degrees flexion, 10 degrees abduction, and 5 degrees external rotations reflected by the repetitive ROM testing found in the June 2011 and April 2014 VA examination report.  Regarding flare ups, the examiner could not provide an opinion on additional ROM limitations due to flare ups due to a deficiency in the record.  She noted that the June 2011 and April 2014 VA examination reports did not discuss passive ROM testing, pain on weight-bearing testing, or any descriptions of functional loss during flare ups.  The examiner noted that the absence of specific detailed musculoskeletal information prohibited a retrospective opinion of the severity of the left shoulder since 2010.  

The Board finds that these VA opinions are adequate, as they were based upon a complete review of the evidence of record, consideration of the Veteran's lay statements and contentions, and clinical examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  These opinions are also probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).       

Analysis

The Board finds that a 20 percent rating is warranted for the period prior to April 14, 2014, based on painful motion of the left shoulder.  See Sowers v. McDonald, 27 Vet. App. 472, 478-79, 482 (2016) (stating that application of 38 C.F.R. § 4.59 warrants at least the minimum compensable rating for painful motion of a joint); see also 38 C.F.R. § 4.71a, DC 5201; Downey v. McDonald, No. 15-3283, 2016 U.S. App. Vet. Claims LEXIS 1997, *9 (Dec. 28, 2016) (nonprecedential Memorandum Decision) (recognizing that 20 percent is the minimum compensable rating based on application of 38 C.F.R. § 4.59 to Diagnostic Code 5201) (citing Sowers, 27 Vet. App. at 482).  The evidence of record demonstrates that the Veteran has experienced painful motion of his left shoulder from June 2010 through April 2014 and, under 38 C.F.R. § 4.59, is entitled to the minimum compensable rating under DC 5201, which is 20 percent for the minor arm.  

However, the Board finds that a rating in excess of 20 percent for the left shoulder is not warranted over the entire appeal period, as the weight of the competent and probative evidence is against finding limitation of flexion and/or abduction limited to 25 degrees from the side, under both the old and new rating criteria.  38 C.F.R. § 4.71a.  The evidence demonstrates that flexion and/or abduction was limited to 60 degrees at its most severe.  

The Board has considered the 38 C.F.R. §§ 4.40, 4.45, and 4.59, and Mitchell and DeLuca criteria, and in fact herein assigns a 20 percent rating prior to April 14, 2014, on the basis of such criteria, but finds that the competent and probative evidence weighs against finding weakened movement, excess fatigability, incoordination, and/or pain during flare-ups or after repeated use over time resulting in motion limited to midway between side and shoulder level.  In other words, the Board finds that the Veteran's left shoulder disability does not more closely approximate the criteria for a 30 percent evaluation.  See 38 C.F.R. § 4.71a. Moreover, the evidence does not show dislocations, ankylosis, other impairment of the humerus, or impairment of the clavicle or scapula.  The Board considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991); however, the evidence does not show symptoms that could be separately rated higher under another diagnostic code.  See 38 C.F.R. § 4.71a.  

The Board acknowledges that under 38 C.F.R. § 4.59, examination of certain joints should include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing.  Correia v. McDonald, 28 Vet. App. 158 (2016). To the extent that other examinations cited herein did not explicitly provide these findings, the Board reiterates the pertinent ratings of the spine with or without symptoms such as pain.  Thus, any deficiency of the examinations of record in this regard is harmless, as assessment of pain in accordance with 38 C.F.R. § 4.59 would not provide a basis for the assignment of any higher rating.

Additionally, to the extent that earlier examinations discussed herein did not explicitly provide findings of passive ROM testing, pain on both active and passive motion, or in weight-bearing and non-weight-bearing, they are nonetheless the most probative evidence available with regard to the severity of the left shoulder disability at the time those examinations were conducted.  Any additional medical opinion with regard to those periods would be retrospective and entitled to less probative value than the contemporaneous range of motion evidence already of record.  Therefore, remand for any additional retrospective opinion is not warranted.  See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant).

In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Veteran contends that his left shoulder symptoms warrant a higher rating.  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences.  Layno v. Brown, 6 Vet. App. 465 (1994).  That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 20 percent currently assigned for his left shoulder disability during the appeal period based on the symptomology present.  His current symptomology is encapsulated in the current rating assigned under the Rating Schedule, with no evidence of symptomology warranting extra-schedular consideration.

Since a preponderance of the evidence weights against the Veteran, he is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001).  

Lumbar Spine

The Veteran contends that his low back symptomology is worse than the ratings currently assigned.  By way of history, the Veteran filed his service connection claim in June 2010.  The October 2011 rating decision granted service connection for low back strain and awarded a 10 percent rating effective June 22, 2010.  The Veteran timely appealed this determination to the Board.  During the pendency of this appeal, a July 2014 rating decision increased the rating to 20 percent effective April 14, 2010.  Furthermore, a December 2021 rating decision increased the rating to 40 percent effective August 6, 2019.    

The Veteran's low back disability is rated under Diagnosis Code (DC) 5243.  Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.  The formula for rating IVDS based on incapacitating episodes provides that an evaluation of 10 percent 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.  An evaluation of 20 percent 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.  An evaluation of 40 percent 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.  An evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243.  For the purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1).

Under the General Rating Formula for diseases and injuries of the spine, 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 (ROM) 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.  An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 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 rating 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.  Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching."  Id. at Note 5.  Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis.  Id.

In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45.  When assigning a disability rating, it is necessary to consider functional loss due to flare-ups. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The Board will focus on the following appeal periods: (1) prior to April 14, 2014; (2) from April 14, 2014, to August 9, 2019; and (3) from August 9, 2019 onward. 

Prior to April 14, 2014

Factual History

The Veteran underwent a VA examination in June 2011.  He was diagnosed with low back strain.  He reported daily chronic lower back pain, stiffness, fatigue and numbness.  He denied experiencing bowel problems, erectile dysfunction, or bladder problems in relation to his lower back condition.  He also denied experiencing spasms, decreased motion, paresthesias and weakness.  He endorsed flare ups that were exacerbated by physical activity and walking.  He also reported functional impairment which was described as difficulty with prolonged walking and lifting.  Clinical examination revealed ROM measurements of flexion up to 80 degrees, extension up to 25 degrees, bilateral lateral flexion and rotation up to 30 degrees.  No additional ROM limitation was found on repetitive use.  The examiner also noted no evidence of radiating pain on movements, muscle spasm, tenderness, guarding of movement, weakness, or ankylosis.  In addition, the examiner found that the joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  Furthermore, the examiner found no signs of IVDS with chronic and permanent nerve root involvement and no evidence of motor weakness or bilateral lower extremity issues. 

A retrospective VA opinion was issued in September 2020.  The examiner noted that the repetitive use test results on the June 2011 VA examination report showed no change from the initial ROM results and, thus, shows no additional ROM loss on repetitive use.  Regarding flare ups, the examiner could not provide an opinion on additional ROM limitations due to flare ups due to a deficiency in the record.  She noted that the June 2011 VA examination report did not discuss passive ROM testing, pain on weight-bearing testing, or any descriptions of functional loss during flare ups.  The examiner noted that the absence of specific detailed musculoskeletal information prohibited a retrospective opinion of the severity of the low back since 2010.

The Board finds that these VA opinions are adequate, as they were based upon a complete review of the evidence of record, consideration of the Veteran's lay statements and contentions, and clinical examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  These opinions are also probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Board notes that a Disability Determination Service examination of the low back was conducted in May 2013.  Clinical examination revealed ROM measurements of flexion and extension up to 0 degrees, and lateral flexion and rotation up to 10 degrees on the right and left sides.  However, the Board afford this examination low probative value because there is no evidence that a goniometer was used during the examination and the results are inconsistent with the two VA examination reports of record.  

Analysis

Based on the reported symptomatology of the Veteran's limitation of motion and reported functional impairments at his VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, that an initial 20 percent rating is warranted for the Veteran's service-connected low back disability for the period prior to April 14, 2014.  

The Board notes that for a 20 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees but not greater than 60 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5242 (2020).  Such impairment was not documented as forward flexion of the thoracolumbar spine on VA examination in June 2011 was from 0 to 80 degrees. However, the June 2011 VA examiner also noted that the Veteran reported daily chronic lower back pain, stiffness, fatigue and numbness and endorsed flare ups that were exacerbated by physical activity and walking.  He also reported functional impairment which was described as difficulty with prolonged. While the Veteran reported report flare-ups of the thoracolumbar spine, the examiner noted that there was no additional limit of functional ability when it was used repeatedly over a period of time. However, the Board finds that an initial 20 percent rating is warranted based on the reported symptomatology of the Veteran's reported functional impairment at his June 2011 VA examination.

Therefore, in consideration of pain, weakness, and fatigue, the Board finds that an initial 20 percent rating is warranted.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202.  

However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an initial higher evaluation in excess of 20 percent for a lumbar spine disability.

The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent at any time relevant to the decision as the Veteran has not met the criteria under the general rating code.

Regarding the orthopedic manifestations, the Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Code 5242 (2020).  Such impairment was simply not documented as forward flexion of his thoracolumbar spine was not limited to 30 degrees or less and the Veteran did not have any type of spinal ankylosis, including in consideration of functional loss due to pain on motion, weakness and fatigability.

The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7.  Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms.  Although it was noted on the VA examination report that the Veteran exhibited pain on lumbar spine motion, there was no functional loss noted to be equivalent to limitation of flexion to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine to meet the criteria for a 40 percent evaluation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242.  

Since flexion has not been limited to 30 degrees or less even after repetitive use; and the Veteran's spine is not ankylosed since he has demonstrated the ability to flex, extend, and laterally flex and rotate, the criteria for a rating in excess of a 20 percent evaluation have not been met.  Thus, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his low back disability.

While the Veteran had pain at his June 2011 VA examination, the examiner notably found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time and the Veteran did not report flare ups.  

In addition to testing, the Veteran had been asked to describe functional loss and impairment in various situations and he had not identified that he has loss of motion to the degree required for a higher rating in excess of 20 percent.  

The Board again acknowledges that the Veteran had pain, weakened movement and less movement than normal.  This is well documented in the lay and medical evidence.  Furthermore, the Board again accepts that he has functional impairment, pain and limited motion as demonstrated by the VA examination.  See DeLuca, supra.  The Board further finds that the Veteran's own reports of symptomatology to be credible.  However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for evaluations in excess of 20 percent.

Furthermore, the Veteran was not found to have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  

Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran's functional losses equate to the criteria required for a 40 percent or greater rating under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. 

Therefore, the Board finds that the overall impairment resulting from his back disability would still more closely approximate no more than a 20 percent rating.

With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 20 percent as contemplated by the holding in Deluca. 

Thus, the weight of the evidence is against the grant of a disability rating in excess of 20 percent, based on orthopedic findings.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2020).  

Regarding an evaluation in excess of 20 percent based on incapacitating episodes, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  

However, the June 2011 VA examiner found that the Veteran did not have intervertebral disc syndrome and also noted that during the past 12 months, there were no incapacitating episodes for the thoracolumbar spine region.

Accordingly, the provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran's service-connected thoracic spine disability because the evidence of record does not document incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). 

In sum, an evaluation in excess of 20 percent rating for a low back disability is not warranted.  

Accordingly, the Board finds that the evidence supports the assignment of an initial 20 percent rating for a low back disability.  However, the Board finds that the preponderance of the evidence is against the assignment of an initial rating greater than 20 percent for a low back disability for the period prior to April 14, 2014.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020).

From April 14, 2014, to August 6, 2019

Factual History 

The Veteran underwent a VA examination in April 2014.  He was diagnosed with IVDS of the lumbar spine.  He also reported being unable to bend or lift anything due to his symptomology.  He endorsed experiencing flare ups of severe pain that limited his mobility.  Clinical examination revealed ROM measurements of forward flexion up to 55 degrees, extension up to 10 degrees, and lateral flexion and lateral rotation up to 20 degrees for the right and left sides with objective evidence of pain on all measurements.  No additional ROM limitations were found on repetitive use testing.  The examiner noted the following additional functional impairments: less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight bearing.  The examiner also noted the Veteran experiencing guarding or muscle spasm in the form of an abnormal gait.  Muscle strength, reflex, and sensory testing were found to be normal.  The examiner found that the Veteran experienced moderate intermittent pain, mild paresthesias and/or dysesthesias, and numbness in the lower extremities that resulted from his low back condition.  In addition, the examiner noted involvement of the sciatic nerve for both lower extremities as a result of the Veteran's low back condition.  Based on this information, the examiner found that the Veteran experienced incomplete moderate paralysis of the sciatic nerve and radicular pain that was attributable to his service-connected low back disability.  The examiner found that the Veteran has IVDS; however, he did not have any incapacitating episodes over the past 12 months requiring prescribed bed rest.  The examiner noted that the Veteran used a walker occasionally for ambulation during low back flare ups.  The examiner found that the Veteran's low back disability impacted his ability to work due to his inability to stand or sit for prolonged periods, bending, stooping, or lifting.  

A retrospective VA opinion was issued in September 2020.  The examiner noted that the repetitive use test results on the April 2014 VA examination report showed no change from the initial ROM results and, thus, shows no additional ROM loss on repetitive use.  Regarding flare ups, the examiner could not provide an opinion on additional ROM limitations due to flare ups due to a deficiency in the record.  She noted that the April 2014 VA examination report did not discuss passive ROM testing, pain on weight-bearing testing, or any descriptions of functional loss during flare ups.  The examiner noted that the absence of specific detailed musculoskeletal information prohibited a retrospective opinion of the severity of the low back since 2010.

The Board finds that these VA opinions are adequate, as they were based upon a complete review of the evidence of record, consideration of the Veteran's lay statements and contentions, and clinical examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  These opinions are also probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Analysis

Based on the evidence of record, the Board finds that the Veteran's low back symptoms warrant, at most, a 20 percent rating under the General Rating Formula throughout the appeal period.  The Veteran was found to have forward flexion limited to 55 degrees at its more severe.  In addition, he experienced muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  However, a 40 percent rating is not warranted, as the evidence of record does not demonstrate forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  Furthermore, a higher rating is not warranted under the Rating Formula for IVDS, as the evidence does not demonstrate any incapacitating episodes during this appeal period.  

The Board has considered whether any other Diagnostic Codes related to disabilities of the spine would provide for a higher disability rating.  However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code.  See 38 C.F.R. § 4.71a.  

The Board acknowledges that under 38 C.F.R. § 4.59, examination of certain joints should include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing.  Correia v. McDonald, 28 Vet. App. 158 (2016). To the extent that other examinations cited herein did not explicitly provide these findings, the Board reiterates the pertinent ratings of the spine with or without symptoms such as pain.  Thus, any deficiency of the examinations of record in this regard is harmless, as assessment of pain in accordance with 38 C.F.R. § 4.59 would not provide a basis for the assignment of any higher rating.

Additionally, to the extent that earlier examinations discussed herein did not explicitly provide findings of passive ROM testing, pain on both active and passive motion, or in weight-bearing and non-weight-bearing, they are nonetheless the most probative evidence available with regard to the severity of the low back disability at the time those examinations were conducted.  Any additional medical opinion with regard to those periods would be retrospective and entitled to less probative value than the contemporaneous range of motion evidence already of record.  Therefore, remand for any additional retrospective opinion is not warranted.  See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant).

In light of the aforementioned evidence, the Board determines that a rating of 20 percent, but no higher, is warranted for the Veteran's low back disability throughout this appeal period.

In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges the Veteran' hearing testimony and that he is competent to give evidence about what he observes or experiences.  Layno v. Brown, 6 Vet. App. 465 (1994).  That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 20 percent currently assigned for his low back disability during the appeal period based on the symptomology present.  The Board places greater probative weight on the objective medical findings.  His current symptomology is encapsulated in the current rating assigned under the Rating Schedule, with no evidence of symptomology warranting extra-schedular consideration.

Since a preponderance of the evidence weights against the Veteran, he is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001).  Therefore, his claim for an increased rating is denied. 

From August 6, 2019 

Factual History

The Veteran underwent a VA examination in August 2019.  He was diagnosed with IVDS with bilateral lower extremity radiculopathy.  He reported pain when bending over for activities and when standing or sitting for long periods of time.  He also reported pain during sleep and being unbale to stay laying down for long periods of time due to pain.  He endorsed flare ups occurring intermittently up to five times a week with severe pain and stiffness lasting up to four hours precipitated by prolonged physical activities.  He also endorsed additional functional impairment with pain and stiffness contributing to limited ROM.    

Clinical examination revealed ROM measurement of forward flexion up to 40 degrees, and extension, lateral flexion and rotation up to 20 degrees with pain on all measurements causing functional loss.  Evidence of pain on weight bearing was noted.  Additional ROM limitations of flexion up to 35 degrees, and extension, lateral flexion and rotation up to 15 degrees based on pain and lack of endurance on observed repetitive use testing.  Regarding repetitive use over time, additional ROM limitations of flexion up to 30 degrees, and extension, lateral flexion, and rotation up to 15 degrees was noted due to pain and lack of endurance.  Regarding flare ups, additional ROM limitations of flexion up to 25 degrees, and extension, lateral flexion and rotation up to 15 degrees due to pain and lack of endurance.  There was no evidence found of guarding or muscle spasms.  In addition, muscle strength testing was found to be normal with no evidence of atrophy.  The examiner noted the Veteran experiencing radicular pain, with moderate constant pain, paresthesias and/or dysesthesias, and numbness in his bilateral lower extremities.  In addition, the examiner noted involvement of the sciatic nerve bilaterally that resulted in moderate severity.  The examiner also noted that the Veteran had IVDS, but that he did not experience any acute signs or symptoms that required best rest in the past 12 months.  The Veteran reported using a walker to ambulate due to his back condition.  The examiner found that the Veteran's low back disability impacted his ability to work due to his limited ROM, pain, and stiffness causing difficulty with lifting repetitively over 15 lbs.  The examiner found objective evidence of pain on passive ROM, and on non-weight bearing testing, with all pain beginning at the initial ROM measurements.  

The Veteran underwent a second VA examination in September 2020.  He was diagnosed with degenerative arthritis of the spine, and IVDS of the lumbar spine with bilateral lower extremity radiculopathy.  The examiner noted the Veteran's report of pain when bending over for activities and when standing for long periods of time.  He endorsed flare ups, stating that he has to sit up most of the time and has additional functional impairment due to lifting, standing, and walking  

Clinical examination revealed ROM measurement of forward flexion up to 35 degrees, extension up to 25 degrees, right lateral flexion up to 15 degrees, left lateral flexion up to 20 degrees, and lateral rotation up to 10 degrees for the right and left sides.  Pain was found on examination for all ROM that caused functional loss.  In addition, there was evidence of pain with weight bearing and tenderness or pain on palpation.  The examiner noted additional ROM due to repetitive use, with forward flexion up to 30 degrees, extension up to 20 degrees, right lateral flexion up to 10 degrees, left lateral flexion up to 15 degrees, and lateral rotation up to 5 degrees on the right and left sides.  Regarding flare ups, the examiner noted ROM measurements of forward flexion up to 35 degrees, extension up to 25 degrees, right later flexion up to 15 degrees, left lateral flexion up to 20 degrees, and lateral rotation up to 10 degrees for the right and left sides.  No guarding and/or muscle spasms were found on examination.  The examiner noted the additional contributing factors of disability: disturbance of locomotion, interference with sitting, interference with standing.  Muscle strength testing revealed active movement against some resistance, but no evidence of atrophy.  Sensory and reflex testing revealed decreased sensation in the lower extremities and hypoactivity in the right lower extremity.  The examiner noted that the Veteran experienced moderate constant pain, paresthesias and/or dysesthesias, and numbness that resulted in moderate bilateral lower extremity radiculopathy.  No ankylosis of the spine was found on examination.  The examiner did find that the Veteran had IVDS but found that he did not experience any episodes of acute signs or symptoms that required best rest over the past 12 months.  The Veteran reported using a brace, cane, and walker to ambulate due to his low back condition.  The examiner found that the low back condition impacted his ability to work because of exertional limitations of lifting 10 lbs. or less, standing less than two hours, walking less than two hours, and limitations of occasional stooping and crouching.   The examiner found objective evidence of pain on non-weight bearing.  However, the examiner did not provide passive ROM measurements, stating that it could not be performed or was not medically appropriate.  

The Veteran underwent a third VA examination in December 2021.  He was diagnosed with IVDS of the lumbar spine with bilateral lower extremity radiculopathy.  He reported experiencing constant aching pain (9-10/10) radiating into his legs and not being able to stand or bend for a long period of time.  He also endorsed daily flare ups precipitated by any physical movement that result in difficulty in all ROMs due to severe pain.  He also reported additional functional impairment as standing, walking, and sitting was difficult due to pain.  

Clinical examination revealed ROM measurements of forward flexion up to 60 degrees, extension up to 0 degrees, right lateral flexion up to 15 degrees, left lateral flexion up to 20 degrees, and lateral rotation up to 30 degrees for the right and left sides.  Pain was noted on all ROM measurements, weight-bearing, non-weight bearing, and at rest, but it did not result in functional loss.  Objective evidence of localized severe tenderness or pain on palpation was noted by the examiner.  Passive ROM testing was not conducted, as the examiner stated that it was not possible to do a meaningful passive or non-weight bearing range of thoracolumbar motion in an adult because the spine is bearing weight in all positions except the supine posture and attempts to passively move the spine in that position invariably result in examinee attempts at active movement.  No additional ROM limitations were found on repetitive use testing.  Regarding flare ups, the examiner noted additional ROM limitations of forward flexion up to 30 degrees, with extension, lateral flexion, and lateral rotation up to 0 degrees.  Guarding of the spine that resulted in an abnormal gait or abnormal spine contour was noted by the examiner.  Less movement than normal and a severe antalgic gait were noted as additional factors contributing to the low back disability.  Muscle strength and sensory testing was found not be normal.  The examiner noted severe constant pain and moderate paresthesias and/or dysthesias and numbness of the lower extremities as a result of radicular pain from the low back disability.  The femoral and sciatic nerve were noted to be involved in the radiculopathy of both lower extremities.  No evidence of ankylosis or other neurological abnormalities were found on examination.  The Veteran was noted to have IVDS; however, he did not experience any episodes of acute signs or symptoms that required bed rest prescribed by a physician over the last 12 months.  The Veteran reported constant use of a cane and walker for ambulation due to his low back condition with associated radiculopathy.   The examiner found that the low back condition impacted the Veteran's ability to work by limiting his ability to do repetitive back movements, ability to bear weight for long periods of time, ability to stand for long periods of time, ability to walk, and ability to sit for long periods of time.  	

Analysis 

Based on the evidence of record, the Board finds that the Veteran's back symptoms warrant, at most, a 40 percent rating under the General Rating Formula throughout the appeal period.  Forward flexion of the thoracolumbar spine was limited to 30 degrees at its most severe during flare-ups and with repeated use over time.  However, a 50 percent rating is unwarranted since there is no evidence demonstrating that the low back disability was productive of unfavorable ankylosis of the thoracolumbar spine.  The Board notes that it must consider an evaluation based on ankylosis if the evidence shows limitation of motion that is the functional equivalent of ankylosis.  Chavis v. McDonough, 34 Vet. App. 1 (2021).  However, the current rating of 40 percent encompasses favorable ankylosis of the entire thoracolumbar spine.  Indeed, the most recent VA examination report noted multiple ROM measurements at 0 degrees at its most severe during flare ups and with repetitive use.  Fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis.  38 C.F.R. § 4.71a, Note 5.  In addition, there is no pertinent medical evidence of record demonstrating unfavorable ankylosis, which is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching."  Id.  Furthermore, the Board has considered the Rating Formular for IVDS under the old and new criteria for IVDS; however, it would not result in a higher rating, as the evidence of record does not demonstrate that the Veteran experienced acute signs or symptoms that required bed rest prescribed by a physician throughout the appeal period.  As such, a higher rating is unwarranted.  

The Board has considered whether any other Diagnostic Codes related to disabilities of the spine would provide for a higher disability rating.  However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code.  See 38 C.F.R. § 4.71a.  

The Board acknowledges that under 38 C.F.R. § 4.59, examination of certain joints should include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing.  Correia v. McDonald, 28 Vet. App. 158 (2016). To the extent that these examinations cited herein did not explicitly provide these findings, the Board reiterates the pertinent ratings of the spine with or without symptoms such as pain.  Thus, any deficiency of the examinations of record in this regard is harmless, as assessment of pain in accordance with 38 C.F.R. § 4.59 would not provide a basis for the assignment of any higher rating.

Additionally, to the extent that these examinations discussed herein did not explicitly provide findings on passive ROM testing, pain on both active and passive motion, or in weight-bearing and non-weight-bearing, they are nonetheless the most probative evidence available with regard to the severity of the low back disability at the time those examinations were conducted.  Any additional medical opinion with regard to those periods would be retrospective and entitled to less probative value than the contemporaneous range of motion evidence already of record.  Therefore, remand for any additional retrospective opinion is not warranted.  See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant).

In light of the aforementioned evidence, the Board determines that a rating of 40 percent, but no higher, is warranted for the Veteran's low back disability throughout this appeal period.

In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences.  Layno v. Brown, 6 Vet. App. 465 (1994).  That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 40 percent currently assigned for his low back disability during the appeal period based on the symptomology present.  His current symptomology is encapsulated in the current rating assigned under the Rating Schedule, with no evidence of symptomology warranting extra-schedular consideration.

Since a preponderance of the evidence weights against the Veteran, he is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001).  Therefore, his claim for an increased rating is denied.

Right Lower Extremity

The Veteran contends that he is entitled to a separate compensable rating for his right lower extremity radiculopathy prior to August 6, 2019.  In a September 2019 rating decision, the RO granted a separate 20 percent rating for right lower extremity radiculopathy associated with the Veteran's low back disability effective August 6, 2019, the date the entitlement arose based on the results of an August 2019 VA examination.  

Pursuant to Note (1) of the General Formula for Diseases and Injuries of the Spine (General Formula), VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate Diagnostic Code. See 38 C.F.R. § 4.71A, Diagnostic Codes 5235-5243, Note (1).  Therefore, determining whether separate or higher ratings should be awarded for objective neurological complications is part and parcel of the increased rating claim for the Veteran's thoracolumbar spine disability on appeal.  As the Veteran's low back disability claim has been on appeal since June 2011, the Board will analyze whether the Veteran has experienced any form of right lower extremity radiculopathy from June 2011 to August 2019.  

The Board finds that a separate 20 percent rating is warranted from April 14, 2014, the date of the VA examination that noted right lower extremity radiculopathy that was attributed to his service-connected low back disability.  The Board notes that a VA medical opinion issued in December 2021 found that there was no medical evidence demonstrating right lower extremity radiculopathy prior to August 6, 2019.  However, this opinion is entitled to low probative value as it is based on an inaccurate factual background since the April 2014 VA examination report confirms the presence of right lower extremity radiculopathy that is attributable to the Veteran's low back condition.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 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 DC 8510 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. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.

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 April 2014 VA examination report noted that the Veteran experienced moderate intermittent pain, mild paresthesias and/or dysesthesias, and numbness in the lower extremities that resulted from his low back condition.  In addition, the examiner noted involvement of the sciatic nerve for both lower extremities as a result of the Veteran's low back condition. Based on this information, the examiner found that the Veteran experienced incomplete moderate paralysis of the sciatic nerve and radicular pain that was attributable to his service-connected low back disability.  As such, a 20 percent rating is warranted as of April 14, 2014, based on the symptomology noted in the VA examination report.  However, a 40 percent rating is not warranted, as the pertinent medical evidence of record does not demonstrate moderately severe incomplete paralysis of the sciatic nerve.  

The Board has considered whether a separate rating is warranted prior to April 14, 2014.  However, the pertinent evidence of record does not demonstrate that the Veteran experienced any form of right lower extremity radiculopathy prior to April 14, 2014.  A review of the post-service VA treatment record do not contain any complaints or treatment for right lower extremity radiculopathy.  In addition, a June 2011 VA examination found no evidence of lower extremity issues or nerve root impairments as a result of his low back disability.  Therefore, a separate rating prior to April 14, 2014, is not warranted.  

In sum, the Board finds that a separate 20 percent disability rating, but no higher, for right lower extremity radiculopathy is warranted from April 14, 2014.  

Radiculopathy

The Veteran contends that his bilateral lower extremity radiculopathy is worse than the ratings currently assigned.  As stated above, paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. (Neuritis and neuralgia of that group are evaluated under DCs 8620 and 8720.). Under these criteria, 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 December 2021 VA examination report noted involvement of the femoral nerve in addition to the sciatic nerve regarding the Veteran's radiculopathy.  Paralysis of the femoral nerve is evaluated under DC 8525.  Under DC 8525, severe incomplete paralysis is rated under 20 percent disabling.  Complete paralysis, with paralysis of all the muscles of the sole of the foot; frequently with painful paralysis of a causalgic nature; toes cannot be flexed; abduction is weakened; plantar flexion is impaired is rated as 30 percent disabling.  Id. 

The words "mild," "moderate," and "severe" as used in DCs 8520 and 8525 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. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.

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 June 2011 VA examination report noted no evidence of radiating pain on movements, chronic and permanent nerve root involvement, and no evidence of motor weakness or bilateral lower extremity issues.  The April 2014 VA examination report noted that muscle strength, reflex, and sensory testing were found to be normal.  Additionally, the Veteran was noted to experience moderate intermittent pain, mild paresthesias and/or dysesthesias, and numbness in the lower extremities that resulted from his low back condition.  The examiner also noted involvement of the sciatic nerve for both lower extremities as a result of the Veteran's low back condition.  Based on this information, the examiner found that the Veteran experienced incomplete moderate paralysis of the sciatic nerve and radicular pain that was attributable to his service-connected low back disability.  The August 2019 VA examination report noted that there was no evidence found of guarding or muscle spasms.  In addition, muscle strength testing was found to be normal with no evidence of atrophy.  The examiner noted the Veteran experiencing radicular pain, with moderate constant pain, paresthesias and/or dysesthesias, and numbness in his bilateral lower extremities.  In addition, the examiner noted involvement of the sciatic nerve bilaterally that resulted in moderate severity.    The September 2020 VA examination report noted no guarding and/or muscle spasms, but muscle strength testing revealed active movement against some resistance, but no evidence of atrophy.  Sensory and reflex testing revealed decreased sensation in the lower extremities and hypoactivity in the right lower extremity.  The examiner noted that the Veteran experienced moderate constant pain, paresthesias and/or dysesthesias, and numbness that resulted in moderate bilateral lower extremity radiculopathy.  The December 2021 VA examination report noted guarding of the spine that resulted in an abnormal gait Muscle strength and sensory testing was found to be normal.  The examiner noted severe constant pain and moderate paresthesias and/or dysthesias and numbness of the lower extremities as a result of radicular pain from the low back disability.  The femoral and sciatic nerve were noted to be involved in the radiculopathy of both lower extremities.  

Based on the evidence of record, the Board finds that the bilateral lower extremity symptomology warrant, at most, a 20 percent rating throughout the appeal period.  The majority of the VA examination reports note that the Veteran experienced moderate incomplete paralysis of the sciatic nerve that resulted in moderate symptoms of radiculopathy in the bilateral lower extremities.  The VA examiners' specific characterization of the radiculopathy as "moderate" were based on their professional training, the examination results, the Veteran's history and statements, and a review of the entire relevant record.  The bilateral disability manifests mainly as numbness, tingling, pain, and incomplete paralysis.  However, a rating of 40 percent is unwarranted, as the evidence does not demonstrate moderately severe incomplete paralysis of the sciatic nerve.  The evidence of record demonstrates normal muscle strength and normal reflexes were found throughout the appeal period.   

The Board has considered whether any other Diagnostic Codes would provide for a higher disability rating.  However, a higher rating is unavailable under DC 8525, as there is no evidence demonstrating complete paralysis, with paralysis of all the muscles of the sole of the foot; frequently with painful paralysis of a causalgic nature; toes cannot be flexed; abduction is weakened; plantar flexion is impaired.  In addition, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code.  See 38 C.F.R. § 4.71a.  

In light of the aforementioned evidence, the Board determines that a rating of 20 percent, but no higher, is warranted for the Veteran's bilateral lower extremity radiculopathy throughout this appeal period.

In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences.  Layno v. Brown, 6 Vet. App. 465 (1994).  That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 20 percent currently assigned for his bilateral lower extremity radiculopathy during the appeal period based on the symptomology present.  His current symptomology is encapsulated in the current rating assigned under the Rating Schedule, with no evidence of symptomology warranting extra-schedular consideration.

Since a preponderance of the evidence weights against the Veteran, he is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001).  Therefore, his claim for an increased rating is denied.

TDIU

The Veteran contends that he is entitled to a TDIU as a result of his service-connected disabilities.  A TDIU claim, either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In November 2011, July 2015, June 2016, and April 2020, the Veteran submitted a VA 21-8940 Application for Increased Compensation Based on Unemployability, stating that he was unable to work due to his service-connected disabilities. 

Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15.  A substantially gainful occupation has been defined as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides."  M21-1 VA Adjudication Procedure Manual, Part IV.ii.2.F.1.c.  It also has been defined as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income."  Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a "living wage."  Id.   

When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991).  In making this determination, consideration may be given to factors such as the veteran's level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16 (a). 

Whether a veteran is capable of substantially gainful employment is determined by the VA adjudicator and is not a medical determination.  38 C.F.R. § 4.16 (a).  When evaluating TDIU entitlement, the pertinent inquiry is whether a claimant's service-connected disability alone is of sufficient severity to produce unemployability.  The impact of non-service connected disabilities is not to be considered.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992).  The ultimate question is whether a claimant is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Thus, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient to establish entitlement to a TDIU.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Notably, in a recent precedential case, in Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16 (b) to have two components: one economic and one noneconomic.  The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.  The non-economic component includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.  Ray v. Wilkie, 21 Vet. App. 58 (2019).

During the period on appeal, compensable service connection was in effect for the following disabilities: angiodema (claimed as bilateral leg with swelling of the feet, stomach, face, and body) with a 40 percent rating assigned; IVDS of the lumbar spine with a 20 percent rating from June 22, 2010 to August 6, 2019, and 40 percent rating from August 6, 2019; bilateral lower extremity radiculopathy, with a 20 percent rating assigned, respectfully, and left shoulder tendonitis with a 20 percent rating assigned.  The combined rating was 70 percent from June 22, 2010 and 80 percent from August 6, 2019.  The schedular criteria for TDIU have been met.  38 C.F.R. § 4.16 (a).  However, the Board determines that a preponderance of the evidence is against finding that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 

The record reflects that the Veteran claimed to have been unemployed since June 2010, but Social Security Administration (SSA) records demonstrates that the Veteran was employed from 2010 through August 2013.  In addition, the record reflects that while the Veteran reported his last occupation was that of a warehouse laborer, SSA records indicate that his last occupation was that of an automotive mechanic helper.  The record also reflects that the Veteran had a high school education.  The record further reflects that the Veteran was employed as a bread dough maker, a security guard, a possible substitute teacher, and as an automobile mechanic helper.  Job tasks undertaken by the Veteran related to these occupations include heavy lifting, repairing automobile transmissions using hand tools and power tool, bending up to six hours a day, standing and walking for up to eight hours a day

A review of the Veteran's post-service VA treatment records during the appeal period reveals continuous treatment for various physical and mental conditions, including his service-connected disabilities.  However, none of the Veteran's treating physicians have given a positive opinion that the Veteran's service-connected disabilities, either individually or combined, rendered him unable to obtain and maintain a substantially gainful employment.  

Regarding the angioedema, the Veteran underwent a VA examination in August 2011.  He reported experiencing pain, aching, and fatigue.  However, he reported that he did not experience any overall functional impairment from this condition.  

Regarding the low back disability and associated lower extremity radiculopathy, the June 2011 VA examiner noted that the Veteran experienced functional impairment in the form of difficulty with prolonged walking, sitting, and standing.  The April 2014 VA examiner found that the Veteran's low back disability and associated radiculopathy impacted his ability to work due to his inability to stand or sit for prolonged periods, bending, stooping, or lifting.  The August 2019 VA examiner found that the low back disability and associated radiculopathy impacted his ability to work due to his limited ROM, pain, and stiffness causing difficulty with lifting repetitively over 15 lbs.  The August 2011 VA examiner also found that there was no effect of the low back and radiculopathy diagnoses on sedentary activities of employment.  

Merriam-Webster online dictionary defines "sedentary" as (a) "doing or requiring much sitting" or (b) "not physically active."  https://www.merriam-webster.com/dictionary/sedentary.  The Board employs this definition in the current analysis.  See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) (before the Board can rely on an examiner's finding that a veteran is capable of sedentary work to deny TDIU, it must also ensure that the finding is consistent with the medical evidence as a whole).  

The September 2020 VA examiner found that the low back condition and associated radiculopathy impacted his ability to work because of exertional limitations of lifting 10 lbs.  or less, standing less than two hours, walking less than two hours, and limitations of occasional stooping and crouching.  The December 2021 VA examiner found that the low back condition impacted the Veteran's ability to work by limiting his ability to do repetitive back movements, ability to bear weight for long periods of time, ability to stand for long periods of time, ability to walk, and ability to sit for long periods of time.  None of the VA examiners found that the low back condition and associated radiculopathy resulted in the Veteran being unable to work.  

Regarding the left shoulder disability, the June 2011 VA examiner noted the following functional impairment:  unable to mow lawn, no heavy lifting.  The April 2014 VA examiner noted the following functional impairment: [the Veteran] is able to lift or hold objects with the left hand, but was unable to reach overhead.  The August 2019 VA examiner found that the left shoulder condition impacted the Veteran's ability to work in the form of shoulder pain, stiffness, limited ROM, difficulty with heavy lifting over 15 lbs., or repetitive motion over 15 minutes.  The August 2019 VA examiner also found that there was no effect of the established diagnoses related to the left shoulder on sedentary activities of employment.  The September 2020 VA examiner found that the left shoulder condition impacted the Veteran's ability to work due to exertional limitations of lifting 10 lbs. or less; no overhead or forward reaching.  

The Board finds that these VA opinions are adequate, as they were based upon a complete review of the evidence of record, consideration of the Veteran's lay statements and contentions, and clinical examination of the Veteran.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  These opinions are also probative because it is based on an accurate medical history and provide an explanation that contain a clear conclusion and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  To the extent that earlier examinations discussed herein did not explicitly provide adequate findings, they are nonetheless the most probative evidence available with regard to the severity of the Veteran's service-connected disabilities at the time those examinations were conducted.  Any additional medical opinion with regard to those periods would be retrospective and entitled to less probative value than the VA examinations already of record.  Furthermore, the Board recognizes that the VA's duty to assist does not require a "combined-effects medical examination report or opinion" to adjudicate a TDIU claim.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014).  The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ.  Id.  Therefore, a remand for any additional retrospective opinion is not warranted.  See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand is unnecessary where it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant).  

Based on the foregoing, the Board finds no persuasive evidence that the Veteran was unable to secure or follow any substantive gainful employment due to his service connected disabilities.  The Board's finding is supported by the VA examiners' determinations that the Veteran's service-connected disabilities did not preclude him from securing such employment.  The evidence of record shows that, while there is evidence of interference with employment, the Veteran's service-connected disabilities alone did not preclude all forms of employment.  In reaching this conclusion, the Board has considered the combined effects of the Veteran's service-connected disabilities but finds that the impact is not so severe as to preclude the Veteran from being able to follow substantially gainful employment consistent with his education, skills, and work experience during the period on appeal.  The VA examiners found that while the Veteran experiences exertional limitations, he is not precluded from all forms of work solely as a result of his service-connected disabilities.  As such, entitlement to a TDIU for this appeal period is not warranted.      

While the Board is cognizant of the Veteran's limited educational experience, his lack of formal/additional specialized training, volunteer work experience, or vocational training, as well as his work experience, the evidence demonstrates that he would be qualified for non-physical or sedentary employment as a result of his service-connected disabilities, despite his assertions to the contrary.  Indeed, his ability to obtain technical knowledge in a variety of different post service occupations, undertake multiple activities of daily living, and his high school education demonstrates that he would have transferable skills that would have qualified him for various non-physical or sedentary occupations.  His vocational background would also involve such transferrable skills as time management, showing up on time, ability to perform general support tasks, use a telephone, and conveying information to others.  Such skills would transition to most sedentary environments.  Thus, the VA medical opinions indicating that his specific service-connected disabilities did not preclude sedentary employment, as defined above, weighs against the TDIU claim.  

The Board notes that the Veteran filed for SSA disability benefits in March 2013.  SSA determinations are not binding on the Board, and it is the duty of the Board to assess the credibility and weight to be given such evidence.  Washington v. Derwinski, 1 Vet. App. 459, 465-66 (1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (finding that SSA determinations should be given appropriate consideration and weight in determining to award or deny an appellant TDIU).  The Board notes that the Veteran applied for SSA disability benefits based, in part, on anxiety, diabetes, high blood pressure, joint pain arthritis, obesity and depression, which he is not service-connected for.  As such, the Board cannot consider these conditions in its TDIU analysis.  In addition, a residual functional capacity evaluation was conducted.  The following exertional limitations were noted as a result of the Veteran's low back and left shoulder disabilities: occasionally lifting up to 20 lbs.; frequently lifting up to 10 lbs.; standing and/or walking up to four hours at a time with normal breaks; sitting about six hours out of an eight hour day; limited push, pull in the lower extremities.  Furthermore, a May 2013 disability evaluation revealed the following limitations: 

[Veteran] is able to sit up, stand, and walk up to 6-8 hours, with limitations in bending, kneeling, crawling, crouching, and stooping.  There are no limitations to reaching, handling, feeling or grasp. I would expect [the Veteran] to have no limitations in lifting with both hands, especially overhead.  There is no need for an assistive device.  There are no visual or environmental limitations noted. In my medical opinion, [the Veteran] does not appear functionally impaired.  [He] appears to augment symptoms on examination.     

The Board finds that this evidence also supports the determination that the Veteran is not unemployable solely as a result of his service connected disabilities.    

In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Veteran contends that his service-connected disabilities impacted his ability to secure or follow substantial gainful employment.  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences.  Layno v. Brown, 6 Vet. App. 465 (1994).  That stated, the evidence of record does not favor a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow gainful employment.  Accordingly, the Board places reduced probative value on the Veteran's self-reported medical history and his alleged reasons for why he was unemployable during the appeal period.  

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Given the foregoing, the Board finds that the pertinent evidence of record shows that the Veteran was not rendered unable to obtain or maintain substantially gainful employment by virtue of his service-connected disabilities during the appeal period.  For the aforementioned reasons, the claim must be denied.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

James A. DeFrank

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.T. Massey, 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.