Citation Nr: 22013370 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 12-28 369 DATE: March 9, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine with spondylolisthesis and spinal stenosis, for the period prior to May 27, 2010, is denied. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine with spondylolisthesis and spinal stenosis, for the period from May 27, 2010, is denied. Entitlement to a separate rating of 10 percent for radiculopathy of the right lower extremity, associated with a service-connected lumbar spine disability, is granted. Entitlement to a separate rating of 10 percent for radiculopathy of the left lower extremity, associated with a service-connected lumbar spine disability, is granted. Entitlement to a total disability rating based upon unemployability (TDIU) from October 20, 2010, but no earlier, is granted. FINDINGS OF FACT 1. Prior to May 27, 2010, the Veteran's low back disability was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes. 2. From May 27, 2010, the Veteran's low back disability was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes. 3. For period on appeal from October 28, 2009 to May 26, 2010, and affording the Veteran any benefit of the doubt, his low back disability has been productive of associated neurologic impairment of the right lower extremity that resulted in disability analogous to mild incomplete paralysis of the sciatic nerve. 4. For period on appeal from October 28, 2009 to May 26, 2010, and affording the Veteran any benefit of the doubt, his low back disability has been productive of associated neurologic impairment of the left lower extremity that resulted in disability analogous to mild incomplete paralysis of the sciatic nerve. 5. From October 20, 2010, the Veteran's service-connected disabilities prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine with spondylolisthesis and spinal stenosis, for the period prior to May 27, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine with spondylolisthesis and spinal stenosis, for the period from May 27, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5242. 3. The criteria for a separate rating of 10 percent for radiculopathy of the right lower extremity, associated with a service-connected lumbar spine disability, have been met for the period on appeal from October 28, 2009 to May 27, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8520. 4. The criteria for a separate rating of 10 percent for radiculopathy of the left lower extremity, associated with a service-connected lumbar spine disability, have been met for the period on appeal from October 28, 2009 to May 27, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8520. 5. The criteria for entitlement to a TDIU from October 20, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a hearing before the undersigned Veterans Law Judge in August 2017. A transcript of the hearing is of record. This matter was previously remanded by the Board in August 2018. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or "staged," ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107 (a); 38 C.F.R. § 4.3. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). 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. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran's back disability is rated under DC 5242. Prior to the regulatory change, the criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A rating of 10 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm, or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id. There are several notes relevant to the rating criteria. 38 C.F.R. § 4.71a. Those pertinent to this appeal are included here. Note (1): Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate DC. Note (2): Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past twelve months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, DC 5243 provides that 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. As of February 7, 2021, under the amended criteria, DC 5243, intervertebral disc syndrome, is assigned "only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine with spondylolisthesis and spinal stenosis, for the period prior to May 27, 2010 The Veteran contends that his lumbar spine disability symptoms are of the severity to warrant a disability rating exceeding 10 percent for the period on appeal prior to May 27, 2010. The Veteran had an examination for his lumbar spine disability in December 2009. The Veteran forward flexion was limited to 80 degrees and extension was limited to 25 degrees. The Veteran's left and right lateral flexion and left and right lateral rotation were all limited to 25 degrees. There was no objective evidence of painful motion, spasm, weakness, tenderness, or atrophy, but there was evidence of some guarding. The Veteran complained of pain at the end of his movements. The Veteran's spinal contour and gait were normal. The Veteran reported that any kind of excessive bending will exacerbate his back, which will alleviate with rest. The Veteran further stated that hs is not able to do any work during a flare-up. The Veteran indicated that he does have stiffness and spasm "on and off". There was no evidence of urinary or bowel complaints. Based on the foregoing, the probative evidence of record is against a finding that an increased rating in excess of 10 percent is warranted. The objective evidence does not show that the Veteran's range of motion has been limited to 60 degrees or less of forward flexion or less than 120 degrees combined, nor is there any objective evidence of abnormal spinal contour due to guarding, spasms or other factors. Rather, the Veteran has had flexion to 80 degrees. While the Board acknowledges the Veteran's statements concerning additional symptoms such as pain, these are outweighed by the objective evidence from this period. Specifically, in evaluating the Veteran's current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The Board notes that the Veteran reported flare-ups at the December 2009 examination. While the Veteran has consistently reported experiencing flare-ups and, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered, there is no indication that any flare-ups result in any additional loss of motion than that outlined above. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011) will be expanded and it is found that flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the reports of exacerbation or flare-ups are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings. The Board finds that an increased disability rating for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain in this case as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. The Board recognizes that at points during his appeal period, there have been general statements about limited range of motion due to pain. However, there is no evidence that the Veteran's reported back pain amounted to functional loss resulting in forward flexion of 60 degrees or less than 120 degrees combined for the period on appeal. The Board finds that the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish pain, weakened movement, excess fatigability, or incoordination that results in additional limitation of motion to the degree that would warrant an increased rating for the period on appeal prior to May 27, 2010. Based on ranges of motion referenced above, ankylosis (defined as a fixation of the joint) has neither been alleged nor shown. Therefore, there is no basis for a higher rating due to favorable ankylosis of the entire thoracolumbar spine (40 percent), unfavorable ankylosis of the entire thoracolumbar spine (50 percent), or unfavorable ankylosis of the entire spine (100 percent) the General Rating Formula. In addition, consideration has been given as to whether a higher disability rating could be assigned under the General Rating Formula for IVDS Based on Incapacitating Episodes. Here, the Board finds that a higher rating is not appropriate under either the old or revised rating criteria. There is no evidence that the Veteran had a diagnosis of IVDS during the period on appeal prior to May 27, 2010. Additionally, there is no evidence that the Veteran had any incapacitating episodes at any time during the appeal period prior to May 27, 2010. Thus, the Board finds that a higher disability rating under the General Rating Formula for IVDS Based on Incapacitating Episodes is not appropriate under either the old or new rating criteria. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable DC. 38 C.F.R. § 4.71a, General Formula, Note 1. The Board notes that at no point during the appeal period has the Veteran demonstrated bowel or bladder incontinence. The issue of separate ratings for lower extremity radiculopathy during the period on appeal prior to May 27, 2010 is addressed below. As such, the Board finds that a rating in excess of 10 percent for the Veteran's thoracolumbar spine disability is not warranted for the period on appeal prior to May 27, 2010. 2. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine with spondylolisthesis and spinal stenosis, for the period from May 27, 2010 The Veteran contends that his lumbar spine disability symptoms were of the severity to warrant a disability rating exceeding 20 percent for the period from May 27, 2010. The Veteran had an examination for his back condition in May 2015. The Veteran was found to have forward flexion to 70 degrees, extension to 20 degrees, and right and left lateral flexion as well as left and right lateral rotation to 20 degrees. Pain was noted on examination. There was pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions without reduced range of motion. The Veteran reported experiencing flare-ups. Specifically, the Veteran reported experiencing flare-ups with bending down for prolonged periods of time or carrying weights like cement or remodeling materials like dry wall increases pain. The examiner stated that it was not possible to determine additional change in range of motion and joint function during flare-ups and during repetitive use of joints without resorting to mere speculation. There was no evidence of muscle spasm or guarding. There was no evidence of muscle atrophy. Additionally, there was no ankylosis or incapacitating episodes. There were no other neurological abnormalities or signs or symptoms due to radiculopathy. There was no evidence of IVDS. The Veteran reported regular use of a cane. At the August 2017 Board hearing, the Veteran testified that his back gives out on him at worst three times per month and that there are moments when his back pain will require him to lay in bed. The Veteran further testified that his back pain interferes with his sleep. The Veteran had an examination for his lumbar spine disability in December 2018. The Veteran was found to have forward flexion to 45 degrees; extension to 14 degrees; right lateral flexion to 20 degrees; left lateral flexion to 11 degrees; and left and right lateral rotation to 15 degrees. No pain was noted on examination. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions without reduced range of motion. The Veteran reported experiencing flare-ups. Specifically, the Veteran described his flare-ups as "just traumatic pain for about 45 seconds and then goes away back to constant pain". The examiner noted that the examination was not conducted during a flare-up. Additionally, the examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups or repeated use over time. Furthermore, the examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups or repeated use over time. Specifically, the examiner stated that the Veteran was not examined immediately after repetitive use over time or during a flare-up, "therefore no objective measurements available leaving the examiner to mere speculation". There was no evidence of muscle spasm or guarding. There was no evidence of muscle atrophy. Additionally, there was no ankylosis. There was no diagnosis of IVDS and no incapacitating episodes. There were no other neurological abnormalities. The Veteran reported occasional use of a wheelchair, brace, cane, and walker. The examiner stated that back passive range of motion testing was not performed as it was not medically appropriate because passive range of motion testing of the thoracolumbar spine could not be performed safely. There was no evidence of pain on non-weight bearing testing of the back. Based on the foregoing, an increased rating in excess of 20 percent is not warranted during the period on appeal from May 27, 2010. The persuasive evidence does not demonstrate that the Veteran was limited to 30 degrees or less of forward flexion of the thoracolumbar spine during this period. Additionally, there is no evidence indicating favorable ankylosis of the entire thoracolumbar spine at any point during this period. The probative medical evidence of record during this period, specifically the May 2015 and December 2018 examination reports, which indicate that the Veteran had range of motion, albeit limited, in all directions. As such, the probative evidence of record is against a finding that the Veteran's overall disability picture during this period more nearly approximated that contemplated by a 40 percent rating, which contemplates forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.7, 4.71a, DC 5242. In determining the level of disability during this period, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has, at different times, complained of pain, flare-ups and limitation of motion. However, the VA examiner, after considering these subjective reports, found that although there was additional functional loss due to pain, weakness, fatigue, or incoordination after repeated use over time and some reduction in range or motion, there was no reduction in range of motion or ankylosis to warrant a disability rating in excess of 20 percent. As such, the Board finds that the Veteran's statements concerning further limitation due to factors such as pain and other factors are outweighed by the objective findings of the VA examiners. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board has considered whether a higher disability rating could be assigned under the General Rating Formula for IVDS Based on Incapacitating Episodes. Here, the Board finds that a higher rating is not appropriate under either the old or revised rating criteria. The Board notes that the Veteran does not have a diagnosis of IVDS. Additionally, there is no objective medical evidence of record that the Veteran has at any point been prescribed bed rest for his low back disability. See 38 C.F.R. § 4.71a, DC 5243, Incapacitating Episodes Formula, Note 1. As such, incapacitating episodes for VA purposes have not been shown at any point during the current appeal and therefore ratings in excess of those currently assigned based on incapacitating episodes are not warranted. Id. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable DC. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, the Board notes that the Veteran is already service connected for bilateral lower extremity radiculopathy during the period on appeal from May 27, 2010. Furthermore, there is no evidence of any other neurological condition associated with the Veteran's lumbar spine disability. The Board finds that the evidence of record is against a rating in excess of 20 percent for the period on appeal from May 27, 2010, as there is no indication that there has been forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine since that time. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Accordingly, the claim is denied. 3. & 4. Entitlement to a separate 10 percent ratings for radiculopathy, right and left lower extremities, associated with service-connected lumbar spine disability, for the period prior to May 27, 2010 As noted above, the notes to the diagnostic criteria for the back direct that any associated objective neurologic abnormalities are to be evaluated separately under an appropriate DC. The Board has also contemplated whether any separate evaluations are applicable here for additional disability associated with the service-connected lumbar spine disability prior to May 27, 2010, when the Regional Office established such ratings. Pursuant to DC 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted where there is moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is for application where there is complete paralysis of the sciatic nerve (i.e., the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.124a, DC 8520. The words "moderate" and "severe" are not defined in 38 C.F.R. §§ 4.120-4.124a. In applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. After affording the Veteran the benefit of the doubt, the Board finds that separate 10 percent ratings for a neurological impairment in the Veteran's right and left lower extremities are warranted for the period on appeal prior to May 27, 2010. As noted above, medical treatment records from December 2009 note a diagnosis of lumbar radiculopathy. Additionally, medical treatment records from March 2010 note that Veteran's complaints of bilateral lower extremity radiculopathy. Furthermore, the Veteran has consistently complained of pain radiating down to his legs during the period on appeal prior to May 27, 2010. Therefore, after affording the Veteran the benefit of the doubt, the Board finds that this warrants 10 percent ratings for his right and left lower extremities for the period on appeal prior to May 27, 2010. However, the Board finds that ratings in excess of 10 percent for the Veteran's right and left lower extremities are not warranted for the period on appeal prior to May 27, 2010. The record does not show affirmative evidence of moderate symptomatology of the Veteran's right and left lower extremities prior to May 27, 2010. Accordingly, separate 10 percent ratings for radiculopathy of the right and left lower extremities is warranted for the period on appeal prior to May 27, 2010. 5. Entitlement to a TDIU The Veteran is also seeking entitlement to a TDIU by reporting that he is unable to work due to his service-connected disabilities. Specifically, at the August 2017 hearing, the Veteran reported being unable to work as a result of his lumbar spine disability. Therefore, the issue of entitlement to a TDIU was raised in conjunction with that claim, and it remains pending from October 28, 2009. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board notes that the matter of entitlement to TDIU is moot from June 25, 2018 to July 31, 2018, as the Veteran is, effective as of that date, in receipt of a 100 percent schedular rating and special monthly compensation (SMC) at the housebound rate. However, as the 100 percent rating and grant of SMC were not effective for the period on appeal excluding the period from June 25, 2018 to July 31, 2018, the issue of entitlement to TDIU remains on appeal for the period from October 28, 2009, excluding the period from June 25, 2018 to July 31, 2018. During the course of the appeal, service connection has been in effect for gastritis; post-traumatic stress disorder (PTSD); degenerative arthritis of the right shoulder; degenerative joint disease of the lumbar spine; degenerative arthritis of the right knee; tinnitus; bilateral epididymitis; scar, residuals of right inguinal hernia repair; and sciatic and femoral nerve right and left lower extremity radiculopathy. The Veteran also had noncompensable ratings from bilateral hearing loss; surgical scar, left breast; fungus, left foot; erectile dysfunction; and surgical scar from left inguina hernia repair. The Veteran had a combined disability rating of 70 percent from September 24, 2001, a 90 percent rating from May 27, 2010; a 100 percent rating from June 5, 2018; a 100 percent rating with SMC housebound from June 25, 2018; and a 100 percent rating from August 1, 2018. Thus, the Veteran is eligible for consideration for a TDIU on a schedular basis throughout the period on appeal since October 28, 2009 (the date of the Veteran's claim), excluding the period from June 25, 2018 to July 31, 2018 because his combined rating is at least 70 percent, and he has at least a 40 percent rating for orthopedic disabilities. See 38 C.F.R. § 4.16(a). The Veteran completed a VA form 21-8940 in October 2018. The Veteran indicated that he became too disabled to work full-time in October 2010. The Veteran previously worked as a laborer from April 2003 to October 2010. The Veteran reported that he attended one year of college. The Veteran had an examination for his back condition in June 2015. The examiner stated that the Veteran's back disability affected his ability to work. Specifically, the examiner stated that Veteran has been using a cane in part due to his back condition. The examiner noted that the Veteran worked as an equipment cleaner for seven years until October 2010. The Veteran reported that he was fired in part for not performing because of his back pain. The examiner indicated that the Veteran has difficulty bending down for prolonged periods of time or carrying weights like cement or remodeling materials like dry wall. The Veteran had an examination for his PTSD in July 2015. The examiner noted that the Veteran lost his job as an equipment repairman in 2010 due to violating the company policy with regard to alcohol abuse. The Veteran reported that he stays busy with occasional construction labor jobs arranged by two of his cousins who are contractors. The examiner indicated that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran had an examination for his right knee disability in August 2015. The examiner indicated that the Veteran's right knee disability impacted his ability to work. Specifically, the examiner stated that the Veteran has difficulty with prolonged walking and standing for a long period of time and problems with heavy lifting because of his knee condition. The examiner also noted that the Veteran has difficulty with squatting, kneeling and running as well. The Veteran had an examination for his gastritis condition in August 2015. The examiner indicated that the Veteran's gastritis condition impacted his ability to work. The examiner stated that the Veteran reported that he continues to have epigastric pain and distress as well as occasional vomiting. In a November 2016 examination for the Veteran's right shoulder disability, the examiner indicated that the Veteran's shoulder condition affected his ability to work. The examiner noted that the Veteran reported that his shoulder condition was interfering with his activities of daily living. Specifically, the examiner noted that the Veteran had difficulty with lifting, mowing, yard work, and lifting above shoulder level and overhead. At the August 2017 Board hearing, the Veteran testified that his back disability limits his ability to do things like mow the lawn. The Veteran testified that he was an equipment cleaner and that his job required a lot of heavy lifting. The Veteran further testified that he left his job partially due to his back pain and that he has not found full time employment since his last job. The Veteran had another examination for his PTSD in December 2018. The examiner stated that the Veteran's PTSD resulted in occupation and social impairment with reduced reliability and productivity. The Veteran exhibited symptoms including depressed mood; anxiety; suspiciousness; panic attacks more than once per week; mild memory loss; flattened affect; and disturbances of motivation and mood. Given the totality of the record, the Board finds that the evidence is at least in equipoise that the Veteran's service-connected disabilities rendered him unemployable from October 20, 2010, the date the Veteran stated that he stopped working full time, excluding the period from June 25, 2018 to July 31, 2018. The Veteran's service-connected orthopedic disabilities have rendered him unable to do physical labor for extended periods of time. Notably, the Veteran's knee and back disabilities hinder his ability to stand and walk for extended periods of time and his right shoulder disability impacts his ability to lift. Furthermore, the Veteran's PTSD likely makes him unable to work well with others and secure and maintain employment in a more sedentary environment. The Veteran's PTSD symptoms of anxiety, suspiciousness, and frequent panic attacks likely hinder his ability to concentrate and otherwise function in an office setting. Furthermore, the Veteran has a limited work history outside of his time in the military, and likely lacks sufficient transferrable skills. Ultimately, the Veteran's limited ability to work well with others, as well as his limited ability to engage in physical labor, render him unable to successfully secure and maintain substantially gainful employment. The Board finds that entitlement to a TDIU is not warranted prior to October 20, 2010 because the Veteran indicated that he was working still working full time as a laborer until October 20, 2010, without a protected environment. In short, the Board finds that the Veteran's disabilities rendered him unemployable from October 20, 2010, but not sooner. Furthermore, the Board notes that the Veteran is not entitled to SMC at the housebound rate (excluding the period on appeal from June 25, 2018 to July 31, 2018). As noted above, when a Veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC. 38 U.S.C. § 1114 (s)(1). In Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008), the Court stated that a TDIU rating can qualify for compensation at the 38 U.S.C. § 1114 (s) rate, but only if the TDIU is based on a single disability. In this case, the evidence demonstrates that the Veteran's unemployability is based on his multiple service-connected disabilities, principally his service-connected PTSD and his service-connected back, right knee, and right shoulder disabilities. Therefore, the Veteran does not qualify for compensation at the 38 U.S.C. § 1114(s) excluding the period from June 25, 2018 to July 31, 2018. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.