Citation Nr: 22014745 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 07-09 587 DATE: March 14, 2022 ORDER Entitlement to a rating of 40 percent, but no higher, for a low back disability is granted. Entitlement to a 10 percent rating for right lower extremity radiculopathy is granted beginning August 23, 2006. Entitlement to a compensable rating for the period prior to August 23, 2006, entitlement to a rating in excess of 10 percent for the period prior to June 13, 2014, and entitlement to a rating in excess of 20 percent thereafter for right lower extremity radiculopathy is denied. Entitlement to a rating in excess of 10 percent for the period prior to June 13, 2014, and entitlement to a rating in excess of 20 percent thereafter for left lower extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted beginning January 1, 2004. FINDINGS OF FACT 1. The Veteran's low back disability has resulted in severe limitation of the lumbar spine, or forward flexion of the thoracolumbar spine of 30 degrees or less, but has not been characterized by unfavorable ankylosis, or the functional equivalent, of the entire thoracolumbar spine. 2. For the period prior to August 23, 2006, the Veteran did not have right lower extremity radiculopathy. For the period prior to June 13, 2014, the Veteran had mild incomplete paralysis of the right lower extremity sciatic nerve, but not moderate incomplete paralysis. For the period beginning June 13, 2014, the Veteran had moderate incomplete paralysis of the right lower extremity sciatic nerve, but not moderately severe incomplete paralysis. 3. For the period prior to June 13, 2014, the Veteran had mild incomplete paralysis of the left lower extremity sciatic nerve, but not moderate incomplete paralysis. For the period beginning June 13, 2014, the Veteran had moderate incomplete paralysis of the left lower extremity sciatic nerve, but not moderately severe incomplete paralysis. 4. The Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation from January 1, 2004. CONCLUSIONS OF LAW 1. The criteria required for a rating of 40 percent, but no higher, for a lumbar spine disability for the entire period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242, 5292 (2002). 2. The criteria for a compensable rating prior to August 23, 2006, a rating in excess of 10 percent prior to June 13, 2014, and in excess of 20 percent thereafter for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.124a, DC 8520. 3. The criteria for a rating in excess of 10 percent prior to June 13, 2014, and in excess of 20 percent thereafter for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.124a, DC 8520. 4. The criteria for entitlement to a TDIU from January 1, 2004, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In September 2010 and April 2014, the Board remanded this case to the RO (regarding solely the low back disability ratings claim). A July 2015 Board decision denied increased ratings for the low back and left and right lower extremity radiculopathy disabilities (and remanded the TDIU matter to the RO for further development). The Veteran appealed the Board denials to the United States Court of Appeals for Veterans Claims (CAVC), which in an April 2016 Order granted a Joint Motion for Partial Remand of the parties, thereby vacating the Board decision as to the low back and radiculopathy matters and remanding the case to the Board for action consistent with the Joint Motion. Those matters were, in turn, remanded by the Board to the RO for further development in June 2016, August 2018, and March 2021. All issues on appeal have now been returned to the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Facts of the Case The Veteran attended a November 2003 VA examination. At the examination, the Veteran reported intermittent pain that can be up to a 7/10 on the pain scale, which is worse with any extended ambulation. He stated his pain radiates to his left lower extremity, however, he has no numbness or paresthesia. His forward flexion was to 45 degrees, extension to 20 degrees. The Veteran ambulated with a cane, and takes baclofen Naprosyn or his back. The examiner stated there was no evidence of radicular symptoms. The Veteran's VA medical records indicate reports and treatment for back pain, and reports of pain radiating to the left thigh. The Veteran attended a September 2004 VA examination. The Veteran reported back pain with exacerbations of pain up to 9/10 on the pain scale, with pain radiating to the left thigh and left hip. He stated it was worse with prolonged sitting or standing. The examiner found 45 degrees of flexion and 20 degrees of extension. The examiner stated the Veteran had normal strength and sensation in the lower extremities. The Veteran attend an April 2006 examination for a Social Security Administration disability determination. The examiner noted the Veteran's back was tender to palpation. The Veteran had difficulty getting on and off the exam table. The examiner noted 4/5 muscle strength in his lower extremities and no evidence of muscle spasms. The Veteran was limited to 45 degrees in both lower extremities on the straight leg raise from the supine position, and to 75 degrees in the left leg from the sitting position. The Veteran attended a May 2008 VA examination. The Veteran reported both urinary and mild fecal incontinence. He also reported severe weekly flare-ups that last hours and are caused by lifting, bending, twisting, and carrying. During these flares, he reported a decreased ability to lift, carry, and ambulate. The Veteran was diagnosed with IVDS, but with no incapacitating episodes requiring bedrest. The examiner stated he used a cane and wheelchair and was unable to walk more than a few yards. The examiner found that his flexion was to 30 degrees, but indicated that pain began at 15 degrees. The examiner found there was no ankylosis. Regarding the lower extremities, the examiner found the Veteran had 4/5 muscle strength in the lower extremities, decreased reflexes in the knee and ankle, and spasm, guarding, and tenderness in the bilateral lower extremities. The Veteran attended a June 2009 VA examination. The Veteran reported he has developed radicular pain which shoots down his lower back and his legs. He stated he had a June 2008 EMG. The Veteran did not report any urinary or fecal incontinence. He reported his back pain was severe, constant, and daily, and that he had severe weekly flare-ups that decreased his ability to walk or stand. The examiner found flexion to 60 degrees, and extension to 20 degrees. The examiner stated the Veteran had additional limitations after three repetitions due to pain, but did not express these in terms of range of motion. The examiner stated there was no ankylosis. The Veteran exhibited normal strength and reflexes of the lower extremities, but impaired sensation. The Veteran attended a November 2010 VA examination for neurological conditions related to his lumbar spine condition. The Veteran reported back pain which traveled down his right and left leg with intermittent numbness. The Veteran reported flare-ups, which caused difficulty bending over, lifting legs, and prolonged sitting and standing. The examiner found sensation to vibration in the lower extremities was decreased, with impaired reflexes, but 5/5 strength in the lower extremities. The Veteran attended a June 2014 VA examination. The Veteran reported flare-ups that caused increased pain. The examiner found forward flexion to 70 degrees, with pain beginning at 60 degrees, with no additional loss of motion with repetitive use. The examiner found no evidence of ankylosis. The examiner also stated there was no evidence of other neurological conditions such as bowel or bladder problems. The examiner found a diagnosis of IVDS, but with no incapacitating episodes. The Veteran exhibited 5/5 muscle strength, normal reflexes, and normal sensation of the lower extremities. The examiner found mild constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness of the lower extremities, and indicated moderate severity right and left lower extremity radiculopathy involving the sciatic nerve. The Veteran attended a February 2017 VA examination. The Veteran reported back pain with bilateral lower extremity radicular pain, in addition to numbness and tingling. The Veteran reported flare-ups that cause him to be unable to bend or lift, with difficulty moving or walking during the flares. The examiner found forward flexion to 40 degrees, with no additional loss after repetitive use. However, the examiner was unable to state the Veteran's functional ability during a flare-up without resorting to speculation. The examiner found no evidence of ankylosis. The examiner also stated there was no evidence of other neurological conditions such as bowel or bladder problems. The Veteran exhibited 4/5 muscle strength, decreased reflexes, and normal sensation of the lower extremities. The examiner found no constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness of the lower extremities, and indicated moderate severity right and left lower extremity radiculopathy involving the sciatic nerve. The examiner provided an April 2019 addendum to this examination. The examiner stated that pain, weakness, and fatigability or incoordination significantly limited the Veteran's functionality after repeated use and during flare-ups, with moderate to severe reduction in range of motion. In an additional August 2019 examination and addendum opinion by the same examiner, the examiner stated that the Veteran has flexion to 90 degrees, but considering repetition over time and flare-ups, the Veteran had an estimated range of motion from 0 to 0 degrees during flare-ups. The examiner found no evidence of ankylosis and no evidence of other neurological conditions such as bowel or bladder problems. The examiner also found normal strength, sensation, reflexes of the lower extremities with no pain, numbness, or paresthesias, overall finding mild bilateral radiculopathy. An August 2020 addendum opinion was obtained. The examiner stated that the Veteran did not have ankylosis. He noted the Veteran could do his activities of daily living, attend his medical appointments, and was sedentary, but not bed ridden. The examiner commented on the April and August 2019 examiner finding of estimated range of motion from 0 to 0 degrees during flares. He stated that this did not indicate ankylosis, but rather than the Veteran has to rest during flares. The examiner stated that the Veteran's range of motion during flare-ups or after repeated use are at least as likely as not similar to those identified in the respective VA examinations dated back to November 2003. The examiner found flexion to 40 degrees and extension to 5 degrees, but flexion was limited to 15 degrees and extension to 0 degrees after repetitive use. The Veteran attended a November 2021 VA examination. The examiner found the Veteran did not report flare-ups; rather the Veteran's pain has progressed so that it is constant. It impacts his ability to walk, sit, stand, and bend. The examiner found no evidence of ankylosis and no evidence of other neurological conditions such as bowel or bladder problems. The examiner found 4/5 strength in hip and knee flexion, normal reflexes, decreased sensation, with mild pain, paresthesias, and numbness. The examiner found moderate incomplete paralysis of the sciatic nerve. Analysis 1. Entitlement to a rating in excess of 20 percent for low back disability. The Veteran's low back disability is currently rated at 20 percent disabling prior to November 17, 2021, and 40 percent disabling after under Diagnostic Code 5242 (previously rated under Diagnostic Code 5292 (2002)). The Veteran contends he is entitled to an increased rating. The period on appeal for this claim begins on August 28, 2003. The Board notes that the criteria for evaluating the spine disabilities was amended effective September 26, 2003. 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, prior to September 26, 2003, the pre-2003 amended criteria apply. Period from August 28, 2003, to September 25, 2003 As noted above, during this period the Veteran's back disability was rated at 20 percent disabling under Diagnostic Code 5292 (2002). Under this diagnostic code, a 20 percent rating is warranted for moderate limitation of the lumbar spine. A 40 percent rating is warranted for severe limitation of the lumbar spine. The Board finds that a 40 percent rating is warranted under Diagnostic Code 5292 for this period. While the October 2003 VA examiner noted only mildly decreased range of motion limitations, he did not consider the Veteran's functioning during repetitive motion or during flare-ups. The Veteran reported increased pain with activity such as walking, and pain up to 7/10. As such, providing the benefit of the doubt and considering the Veteran's reported levels of pain and functioning during flare-ups, the Board finds that during these flares, his range of motion is severely limited. As such, the Veteran is entitled to a 40 percent rating during this period. This is the highest rating available under Diagnostic Code 5292 (2002). As noted by the April 2016 Joint Motion for Partial Remand, the Board also needs to consider the rating criteria under Diagnostic Code 5293 (2002). Under this diagnostic code, a 60 percent rating is available for intervertebral disc syndrome (IVDS), pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. The Veteran does not meet the criteria for this rating. While the November 2003 VA examination does not note a diagnosis of IVDS, the Veteran has had the diagnosis at other points in the record. In addition, the Veteran reported radiating pain to the left lower extremity, which was later diagnosed as sciatic neuropathy. However, as noted above, during periods when the Veteran does not have flare-ups or without repetitive use, his flexion was recorded to 45 degrees, extension to 20 degrees. While he has less levels of functioning during flares, he does not meet the criteria for the 60 percent rating based on persistent symptoms with little intermittent relief. His statements regarding worse pain with activity and his functioning on the examination indicate that he does have periods of intermittent relief. Therefore, the Veteran is not entitled to a rating in excess of 40 percent under Diagnostic Code 5293 (2002). Therefore, for the period from August 28, 2003, to September 25, 2003, the persuasion of the evidence supports a rating of 40 percent under Diagnostic Code 5292 (2002), but no higher. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Period beginning September 26, 2003 For this period, the Veteran's low back disability is currently rated at 20 percent disabling prior to November 17, 2021, and 40 percent disabling after, under Diagnostic Code 5242 (previously rated under Diagnostic Code 5292 (2002)). Under the General Rating Formula for Diseases and Injuries of the Spine a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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. Recently, the U.S. Court of Appeals for Veterans Claims (Court) held that the requirement of ankylosis in the General Rating Formula for Injuries and Diseases of the Spine can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Board finds the evidence of record persuasively weighs in favor of a rating of 40 percent, but no higher, for the low back disability under both the old and new criteria. The May 2008 and November 2021 VA examinations support this finding as they show range of motion limited to 30 degrees of less of flexion. Considering the Veteran's credible reports and the VA examinations, the Board finds that his forward flexion has been limited to 30 degrees or less during flare ups for the entire period on appeal. As such, the Veteran's lumbar spine disability most closely approximates the 40 percent rating criteria for the entire period on appeal. A rating in excess of 40 percent is only warranted when there is unfavorable ankylosis of the entire thoracolumbar spine that results in one of the additional symptoms set forth in Note 5. For the entire period on appeal, the evidence is persuasively against a rating in excess of 40 percent for the back disability. Neither VA examinations, lay statements, nor the Veteran's treatment records show symptoms that approximate the thoracolumbar spine fixed in a bent position and other symptoms such as limited line of vision and restricted opening of the mouth, impaired breathing, or gastrointestinal problems, which is required for a finding of unfavorable ankylosis. The VA examinations do not show evidence of ankylosis, abnormal gait, abnormal contour of the spine, or use of an assistive device for ambulation. While the Veteran has restrictions in his ability to sit, stand, or walk for extended periods of time, inability to lift moderate weight, and moderate difficulty performing activities of daily living, this is adequately compensated by the 40 percent rating. As the Veteran has some range of motion, although significantly limited due to pain, he does not exhibit unfavorable ankylosis (or the functional equivalent) of the entire thoracolumbar spine. The Board notes that many of the VA examinations do not adequately consider the Veteran's functional limitations on passive and active range of motion, range of motion on weight bearing and non-weight bearing, and during flare-ups. However, the Board has found the Veteran's statements regarding his level of functioning during flare-ups credible and probative, and has assigned a rating with careful consideration of the Veteran's reported symptoms. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. No VA examiner has indicated the Veteran was prescribed bed rest, and the Veteran's treatment records do not indicate prescribed bed rest. The Board notes that the May 2008 VA examination found the Veteran reported urinary and fecal incontinence. However, all of the other VA examinations do not indicate urinary or fecal incontinence, or they specifically state the Veteran did not report urinary or fecal incontinence. The Veteran's medical records do not indicate reports of urinary or fecal incontinence. As such, the Board finds the May 2008 VA examination is outweighed by the other evidence of record and the Veteran does not exhibit urinary or fecal incontinence as a result of his low back impairment. The Board notes that effective February 7, 2021, VA amended the musculoskeletal rating criteria. Diagnostic Code 5242, which is the code the Veteran is currently rated under, was not changed. The Board finds the Veteran would not be entitled to a rating in excess of 40 percent under the amended rating criteria for the period from February 7, 2021. For the foregoing reasons, evidence persuasively supports a rating of 40 percent, but no higher, for the entire period on appeal. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Right lower extremity radiculopathy The Veteran's right lower extremity radiculopathy is currently rated at 10 percent disabling beginning June 27, 2009, and 20 percent disabling beginning June 13, 2014. 38 C.F.R. § 4.124a, Diagnostic Code 8520. As such, the issue before the Board is whether the Veteran is entitled to a compensable rating prior to June 27, 2009, a rating in excess of 10 percent beginning June 27, 2009, and a rating in excess of 20 percent beginning June 13, 2014. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the U.S. Court of Appeals for Veterans Claims noted that "DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms." One possible source for such definitions would be the dictionary. Webster's II New College Dictionary defines "mild," as relevant here, as "not severe." Id. at 694 (1995). A synonym for "mild" is "slight," and definitions for "slight" includes "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. at 704. Finally, definitions for "severe" include "extremely intense." Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." 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). Period Prior to June 13, 2014. The Board finds that Veteran is entitled to a 10 percent rating beginning August 23, 2006, but no earlier. A rating in excess of 10 percent is not warranted for the period from August 23, 2006, to June 13, 2014. At the November 2003 and September 2004 VA examinations, the Veteran reported pain radiating to the left lower extremity, but not the right lower extremity. The 2003 examiner found no radicular symptoms. A June 2004 electromyography (EMG) showed no evidence of lower extremity radiculopathy. An August 23, 2006, VA medical center treatment record indicates that physical examination showed decreased sensation on the lower extremities, with decreased reflexes in both lower extremities. In a January 2007 VA medical center record the Veteran reported radiating pain down both legs. The Veteran had an EMG in June 2008, which was abnormal and showed findings that could reflect right lower extremity radiculopathy, though the precise localization could not be determined. The 2008 VA examination showed decreased reflexes and 4/5 strength in the lower extremities. As the Veteran's first report of pain radiating down to the right leg was in an August 23, 2006, VA medical record, the Board finds that the grant of 10 percent for right lower extremity radiculopathy should be awarded as of this date. The Veteran did not have any medical evidence or lay reports of radiating pain to the right lower extremity prior to this date, and as such is not entitled to a compensable rating prior to August 23, 2006. A rating of 20 percent is not warranted prior to June 13, 2014. Prior to this date, the Veteran's right lower extremity radiculopathy resulted in some reports of decreased, but not absent, sensation, and decreased, but not absent, reflexes. There was no evidence of trophic changes or muscle atrophy. Several of the VA examinations found normal strength, sensation, and reflexes. Considering this evidence, the Board finds that the level of impairment is most analogous to mild incomplete paralysis of the sciatic nerve. The persuasion of the evidence supports a compensable rating for right lower extremity sciatic radiculopathy as of August 23, 2006, but no earlier, and does not support a rating in excess of 10 percent from August 23, 2006, to June 13, 2014. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Period beginning June 13, 2014. The Veteran's right lower extremity radiculopathy is rated as 20 percent disabling for this period on appeal. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent. The VA examinations during this period showed no more than moderate pain, paresthesias, and numbness of the lower extremities, and some examinations showed only mild symptoms. Some examinations showed decreased reflexes, but not absent, and decreased sensation, but not absent. Some examinations also showed decreased muscle strength, but only to a level of 4/5. There was no evidence of trophic changes, muscle atrophy, or complete paralysis. All examiners found that the Veteran had moderate radiculopathy or moderate incomplete paralysis of the sciatic nerve. Based on the above, the Board finds that the disability is primarily manifest by moderate (average) pain, sensory loss, and moderately impaired reflexes. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by more or extremely intense pain, trophic changes, complete loss of reflexes or sensation, muscle atrophy, or complete paralysis. Therefore, the Board finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. The Board acknowledges that the Veteran uses an assistive device due in part to his back disability and associated radiculopathy. However, 38 C.F.R. § 4.120 "contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker." Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent beginning June 13, 2014. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Left lower extremity radiculopathy The Veteran's left lower extremity radiculopathy is rated at 10 percent from August 26, 2003, to June 13, 2014, and 20 percent thereafter. As such, the issues before the Board are whether the Veteran is entitled to a rating in excess of 10 percent, or in excess of 20 percent, for each respective period. The criteria for rating radiculopathy is outlined above. Period prior to June 13, 2014. At the November 2003 VA examination the Veteran reported pain radiating to his left lower extremity, but no numbness or parasthesia. The examiner found no evidence of radicular symptoms. The examiner found normal strength and sensation. The May 2008 examiner found 4/5 decreased strength and reflexes. The Jan 2009 examiner found sensation decreased, with impaired reflexes, but 5/5 strength. No examiner found any evidence of trophic changes, muscle atrophy, absent sensation, absent reflexes, or complete paralysis. Based on the above, the Board finds that the disability is primarily manifest by slight pain, occasional sensory loss, mildly decreased muscle strength, and occasionally impaired reflexes. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, complete or constant loss of reflexes or sensation, muscle atrophy, or complete paralysis. Therefore, the Board finds that the level of impairment is most analogous to mild incomplete paralysis. Period beginning June 13, 2014. The VA examinations during this period showed no more than moderate pain, paresthesias, and numbness of the lower extremities, and some examinations showed only mild symptoms. Some examinations showed decreased reflexes, but not absent, and decreased sensation, but not absent. Some examinations also showed decreased muscle strength, but only to a level of 4/5. There was no evidence of trophic changes, muscle atrophy, or complete paralysis. All examiners stated that the Veteran had moderate radiculopathy or moderate incomplete paralysis of the sciatic nerve. Based on the above, the Board finds that the disability is primarily manifest by average pain, sensory loss, mildly impaired strength, and moderately impaired reflexes. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, complete loss of reflexes or sensation, muscle atrophy, or complete paralysis. Therefore, the Board finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. The Board acknowledges that the Veteran uses an assistive device due in part to his back disability and associated radiculopathy. However, 38 C.F.R. § 4.120 "contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker." Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for the period prior to June 13, 2014, and in excess of 20 percent thereafter. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to a TDIU The Veteran currently has a TDIU from April 1, 2005, to April 26, 2006. The Veteran is at a 100 percent rating from January 5, 2005, to March 31, 2005, and for the entire period after April 26, 2006. During the period the Veteran is at a 100 percent schedular rating, there is no evidence of record that his TDIU is due to a single impairment; therefore, entitlement to a TDIU is moot for these periods. The Veteran contends that he should be entitled to a TDIU back to January 1, 2004, which is when he contends he started being unable to maintain substantially gainful activity. There is no contention that the Veteran was not working at substantially gainful levels prior to this date. As such, the issue before the Board is whether the Veteran is entitled to a TDIU for the period of January 1, 2004, through January 4, 2005. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected as of January 1, 2004: left carpal tunnel syndrome, rated at 20 percent disabling; low back disability, rated at 40 percent disabling as awarded in this decision; gastritis, rated at 30 percent disabling; left knee disability, rated at 30 percent disabling; right carpal tunnel syndrome, rated at 30 percent disabling; depression, rated at 10 percent disabling; hemorrhoids, rated as noncompensable; cervical spine disability, rated at 10 percent disabling; cervical spine right and left upper extremity radiculopathy, rated as non-compensable; right and left lower extremity radiculopathy, both rated as 10 percent disabling as awarded in this decision; left knee disability, rated at 10 percent disabling; headaches rated at 10 percent disabling; and sinusitis and pilonidal cyst, both rated as noncompensable. Therefore, the schedular criteria have been met for the period on appeal and the remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran's January 2005 application for TDIU stated that his back, knee and carpal tunnel syndrome disabilities affected his full-time work as of January 5, 2005, and he stopped working full time on that date. He reported he made 60,000 dollars the prior year. However, on his March 2005 employment information form, he reported that he only earned 4,485 dollars the prior year. The Veteran was self-employed as a watch/clock repairman and reported his highest level of education as two years of college. In an August 2005 statement the Veteran stated that he has been losing money on his business because he cannot work gainfully. He stated that he should have been granted TDIU back to January 1, 2004, because his income was very low for the year, and he was unable to follow a substantially gainful occupation. On his March 2007 Form 9, the Veteran stated that during this time he did not work and had to have someone else work in the shop. Although there is some conflicting evidence in the record, resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran did not work at substantially gainful levels beginning January 1, 2004. As noted above, the Veteran has upper extremity disabilities, a back disability, multiple lower extremity disabilities, and a psychiatric and neurological disability. The Veteran's medical records indicate his carpal tunnel syndrome severely restricted his fine and gross motor skills with both hands. His back and lower extremity disabilities caused pain and difficulty bending, lifting, sitting, or standing, for any prolonged periods of time. In addition, the Veteran's depression results in reduced concentration, fatigue, and restlessness. Also, his headaches happen daily and he reported they often cause him to miss work. (Continued on the next page) The Veteran's service-connected disabilities impair his ability to stand, sit, walk, use his upper extremities, concentrate, and sustain a standard work week. These functional impairments limit the Veteran's ability to perform both skilled and unskilled jobs and substantially erode his occupational base. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Therefore, the evidence of record persuasively weighs in favor of finding that the Veteran is entitled to a TDIU beginning January 1, 2004. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.