Citation Nr: 22018503 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-46 581 DATE: March 29, 2022 ORDER Entitlement to a rating in excess of 40 percent for chronic lumbosacral strain with degenerative joint and disc disease is denied. Entitlement to an initial rating of 10 percent, but no higher, from April 1, 2015 to December 21, 2021 for radiculopathy of the left lower extremity is granted. Entitlement to a 20 percent disability rating, but no higher, from December 22, 2021 for radiculopathy of the left lower extremity is granted. Entitlement to an initial compensable rating for low back scar is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from August 11, 2020 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 11, 2020 is remanded. FINDINGS OF FACT 1. At no time during the period on appeal has the Veteran's chronic lumbosacral strain with degenerative joint and disc disease more closely approximated unfavorable ankylosis of the entire thoracolumbar spine. 2. For the period from April 1, 2015 to December 21, 2021, the Veteran's left lower extremity radiculopathy is manifested by no more than mild incomplete paralysis or impairment. 3. For the period from December 22, 2021, the Veteran's left lower extremity radiculopathy is manifested by no more than moderate incomplete paralysis or impairment. 4. The Veteran's low back scar was neither painful or unstable and the approximate total area was no more than 2.5 square centimeters. 5. From August 11, 2020, resolving reasonable doubt in favor of the Veteran, his service-connected disabilities preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for chronic lumbosacral strain with degenerative joint and disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a rating of 10 percent, but no higher, from April 1, 2015 to December 21, 2021 for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.123, 4.124a, Diagnostic Code (DC) 8520. 3. The criteria for a rating of 20 percent, but no higher, from December 22, 2021 for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.123, 4.124a, Diagnostic Code (DC) 8520. 4. The criteria for an initial compensable rating for a low back scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 7802. 5. The criteria for a TDIU from August 11, 2020 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 February 1972 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Board remanded the issue of entitlement to an increased evaluation for chronic lumbosacral strain with degenerative joint and disc disease for a new VA examination, finding that the VA examination obtained in December 2020 failed to comply with the Board's May 2019 remand orders. The Board remanded the issue of entitlement to a TDIU as inextricably intertwined with the increased rating claim on appeal. The Board further instructed that any additional VA and private treatment records, including those records specifically identified in a March 2021 correspondence, should be obtained, securing the proper authorizations where necessary. Additional VA treatment records were added to the Veteran's claims file, and a letter was sent to the Veteran in October 2021, requesting that the Veteran submit, or authorize VA to obtain, any additional relevant private treatment records in support his claim on appeal. In response, the Veteran identified numerous private treatment providers in various correspondences; however, he submitted an authorization form to obtain records on his behalf for only three providers. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA requested records from each of the identified providers noted on the authorization form; treatment records have been received from one of these providers, and responses were received from the remaining two, indicating that no records were available. The requested VA examination was obtained in December 2021. The RO subsequently issued a Supplemental Statement of the Case (SSOC) in January 2022 and the case was returned to the Board for adjudication. The Board finds that the requested development, in substantial compliance with the Board's September 2021 remand directives, has been completed. Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, an August 2017 rating decision awarded a separate 10 percent disability rating for left lower extremity radiculopathy associated with his chronic lumbosacral strain with degenerative joint and disc disease, and a December 2020 rating decision awarded a noncompensable evaluation for a low back scar associated with his chronic lumbosacral strain with degenerative joint and disc disease. Although these issues were not included in the September 2021 SSOC, the Board finds that these issues are part of the Veteran's claim for an increased rating for his chronic lumbosacral strain with degenerative joint and disc disease on appeal. Thus, the Board will address whether increased ratings are warranted for his left lower extremity radiculopathy and low back scar. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Factual Background An April 2015 VA examination notes diagnoses of lumbosacral strain, IVDS, and degenerative disc disease. The Veteran endorsed flare-ups, indicating that he experienced constant pain rated as 8/10 which flared to 10/10 daily and lasted approximately four hours. The Veteran described functional loss at work. Specifically, the Veteran indicated that he was expected to do physical fitness and teaching drills as a high school marine corps leadership teacher, but he was unable to continue working due to his back pain. He indicated that his administrative work required prolonged periods of standing and sitting which became increasingly hard to do, and he had increasing problems doing fitness training. Upon range of motion testing, the Veteran's forward flexion was limited to 70 degrees, extension was limited to 15 degrees, left lateral flexion was limited to 20 degrees, right lateral rotation was noted to be to 60 degrees, and left lateral rotation was noted to be to 40 degrees. There was no evidence of pain with weightbearing. There was no additional loss of function or range of motion after three repetitions. The examiner was unable to say whether pain, weakness, fatiguability, or incoordination significantly limited functional ability with repeated use over a period of time without resorting to mere speculation because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances. The examiner indicated that the examination was not conducted during a flare-up but was medically consistent with the Veteran's statements describing functional loss during flare-ups; nevertheless, the examiner was unable to say whether pain, weakness, fatiguability, or incoordination significantly limited functional ability with repeated use over a period of time without resorting to mere speculation because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances. The examination notes that the Veteran had muscle spasms and localized tenderness that did not result in abnormal gait ot abnormal spinal contour; he did not have guarding of the thoracolumbar spine. Muscle strength was normal and without atrophy. The examination notes that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy; nor did he have ankylosis of the spine or any other neurologic abnormalities or findings related to the thoracolumbar spine disorder. The examination notes that the Veteran did not have IVDS and did not use any assistive devices as a normal mode of locomotion. The examination notes that the Veteran's thoracolumbar spine disorder impacted his ability to work; specifically, the examiner reiterated the Veteran's earlier statements regarding his last job and indicated that the Veteran was currently unable to work because of back pain; these functional impairments (back pain) impact his ability to work at both administrative and high school drill work. An April 1, 2015 private treatment record notes that the Veteran had left leg lumbar radiculopathy. Treatment records from approximately May 2015 through December 2015 reflect a series of monthly steroid injections. These records reflect complaints of low back and left leg pain, with a mildly positive straight leg test on the left in June 2015, and the Veteran noted that he was not able to do the usual things he wanted to do. Subsequent medical treatment records, both VA and private, continue to note complaints and treatment for low back pain; however, no additional symptoms, functional impairment, or objective findings were noted related to his back disability. Medical treatment records throughout the entire appeal period are silent for any complaints related to the Veteran's low back scar. In his May 2016 Notice of Disagreement (NOD), the Veteran reported that he had advanced degenerative disc disease that has worsened over the years. He reported that he had received between nine and ten shots in his spine over a nine month period to help with his pain. In a September 2016 correspondence, the Veteran reiterated that he had to stop working in 2011 due to his back disability. The Veteran was afforded another VA examination in April 2017 for his back disability. The examination notes diagnoses of degenerative arthritis of the spine and lumbosacral strain with disc disease. The Veteran reported that he had constant pain in the lower half of his back to the sides. He noted that the pain kept getting worse; he indicated that he was able to "get up and do something" for 15 minutes before needing to sit for at least 30 to 40 minutes. The Veteran endorsed flare-ups of the thoracolumbar spine, describing increased pain with increased activity. He noted that although he did not work anymore, he was not able to perform normal activities. The Veteran reported that he had 9 epidural injections at a pain clinic over several months, the last treatment being in December 2015. The Veteran described his flare-ups as occurring five days a week and lasting 30 minutes to an hour. The Veteran described his functional impairment as difficulty getting dressed without holding onto something or needing to get dressed while sitting down. The Veteran indicated that he was able to perform personal hygiene, prepare light meals and feed himself, and he drove from home to this clinic appointment (a two hour drive) with a 30 minute stop part way to give his back a break before continuing. Upon examination, the Veteran's forward flexion was noted as 30 to 70 degrees, extension was noted as 30 to 10 degrees, right lateral flexion was limited to 20 degrees, left lateral flexion was limited to 15 degrees, right lateral rotation was limited to 20 degrees, and left lateral rotation was limited to 15 degrees. Pain was noted on examination with rest/non-movement, and there was evidence of pain with weight bearing. The examination notes that there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine, and the Veteran jumped at the touch. The pain was noted as 8/10 that increased to 9/10 with palpation. After three repetitions, the Veteran's forward flexion was noted as 20 to 40 degrees, extension was noted as 20 to 0 degrees, right lateral flexion was limited to 10 degrees, left lateral flexion was limited to 15 degrees, right lateral rotation was limited to 15 degrees, and left lateral rotation was limited to 20 degrees. The examiner was unable to say whether pain, weakness, fatiguability, or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up without resorting to mere speculation because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances. The VA examiner indicated that the Veteran had guarding and tenderness that did not result in abnormal gait or abnormal spinal contour. Muscle strength revealed slightly decreased strength, generally noted as 4/5 bilaterally, with only right ankle dorsiflexion noted as 3/5. The examiner indicated that the Veteran did not have muscle atrophy or ankylosis. The examination notes that the Veteran claimed that he had intermittent pain that proceeds from the left low back down across the buttock to the back of the left thigh and straight down the middle back of the left thigh; thus, the examiner indicated that the Veteran had mild left sciatic nerve involvement. No additional neurological abnormalities were noted. The examination notes that the Veteran had IVDS without any episodes of acute signs or symptoms due to IVDS that required bedrest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran indicated that he regularly used a shooting stake when he walked his dog on gravel. The examination notes that the Veteran had a low back scar, measuring 5 centimeters by 0.2 centimeters, that was neither painful nor unstable. The examiner indicated that the Veteran's back disability impacted his ability to work; specifically, due to his complaints of pain, he had poor function; the Veteran was able to be active for 15 minutes and then needed to sit or lie down to achieve some measure of pain relief in order to resume any activity. The Veteran was afforded another VA examination in November 2020, which notes a diagnosis of IVDS, chronic lumbosacral strain with degenerative joint and disc disease status post discectomy, and lumbar radiculopathy on the left. The Veteran reported that his condition had worsened over the years; he hurt all day and his sleep was hindered. He indicated that sitting, standing, and activity was painful. The Veteran indicated that he took ibuprofen daily. The examination indicates that the Veteran did not report flare-ups; he reported functional loss or functional impairment, noting that sitting, standing, walking, bending, and sleeping were impaired. Upon physical examination, the Veteran's forward flexion was limited to 50 degrees, extension was limited to 20 degrees, right lateral flexion and left lateral flexion were normal, and right lateral rotation and left lateral rotation were each limited to 20 degrees. Pain was noted on examination that caused functional loss. There was no pain with weightbearing. The examination notes that there was no additional loss of function or range of motion after three repetitions. The examiner indicated that pain significantly limited functional ability with repeated use over time. The examiner indicated that, with repeated use over time, the Veteran's flexion was limited to 40 degrees, extension was limited to 20 degrees, and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were each limited to 20 degrees. The examination indicates that the Veteran had mild paresthesias and/or dysesthesias and mild numbness in the left lower extremity; the examiner indicated that the Veteran had mild left lower extremity radiculopathy. The examination notes that the Veteran did not have ankylosis or any other neurological abnormalities related to the thoracolumbar spine. The examiner indicated that the Veteran had IVDS but did not have any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not indicate the use of any assistive devices to aid in his locomotion. The examination indicates that the Veteran had one low back scar, measuring 5 centimeters by 0.5 centimeters, that was not painful or unstable. The examiner indicated that the Veteran's back disability impacted his ability to work. Specifically, the examination notes that when the Veteran's back flares, he was unable to lift more than seven to eight pounds, was unable to bend, unable to twist more than 10 degrees, unable to sit more than 15 to 20 minutes, unable to stand more than 25 to 30 minutes, unable to run, unable to jump or climb, and unable to kneel or squat. A June 2021 VA scar examination indicates that the Veteran had a low back scar due to a microdiscectomy in 2002. The examination notes that the Veteran's scar had improved since onset; the Veteran reported no issues with the scar. The examination notes that the Veteran had one scar located on the midline lower back, measuring 4.7 centimeters by 0.2 centimeters and an approximate total area of .94 centimeters squared, that was not painful, unstable, or due to burns. The examination notes that the Veteran's scar did not result in limitation of function, and the examiner indicated that the Veteran's low back scar did not impact his ability to work. A December 22, 2021 VA back examination notes that the Veteran had chronic lumbosacral strain with degenerative disc disease and IVDS. The examination notes that the Veteran reported no changes in his symptoms since his last VA examination in 2020, reporting only that he experienced chronic low back pain that required him to sleep on his side. The Veteran reported using many over the counter products, prescription pain medications, and heat for treatment and has also received treatment from chiropractors and physical therapy. He currently used Hydrocodone for treatment. The examination notes that the Veteran did not report experiencing flare-ups or having functional loss or functional impairment. Upon physical examination, the Veteran's range of motion was noted as abnormal or outside of normal range of motion, which the examiner indicated would limit his functional ability to perform activities requiring bending forward and leaning from side to side. Range of motion testing revealed forward flexion was limited to 40 degrees, extension was limited to 5 degrees, right later flexion was limited to 20 degrees, left lateral flexion was limited to 15 degrees, and right lateral rotation and left lateral rotation were each to 30 degrees (normal). The examiner indicated that passive range of motion testing could not be performed because the Veteran was exhibiting too much pain. The examination further notes that there was evidence of pain on active range of motion that caused functional loss, keeping him from performing many activities, especially those requiring him to bend forward. No additional functional loss was noted after three repetitions, and the evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with repeated use over time. Muscle strength was normal and there was no atrophy or ankylosis noted. The examination indicates that the Veteran had radicular symptoms of moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the left lower extremity involving the sciatic nerve. No other neurologic abnormalities were noted. The examiner noted one scar located on the lumbar spine, measuring 5 centimeters by 0.2 centimeters. The examination notes that the Veteran had IVDS, which did not result in any episodes of acute signs and symptoms that required bedrest prescribed by a physician and treatment by a physician in the past 12 months. No assistive devices for locomotion were indicated. The examination notes that, due to the Veteran's back disability, the Veteran experienced low back pain particularly when standing on concrete or sitting too long, which would impact his ability to perform occupational tasks. A December 2021 VA scar examination notes that the Veteran had one fully healed stable lumbar spine scar due to a L5-S1 microdiscectomy. The examination notes that the scar was not painful, unstable, nor due to burns. The examination notes that the scar measured 5 centimeters by 0.2 centimeters, which did not result in limitation of function or impact his ability to work. 1. Entitlement to a rating in excess of 40 percent for chronic lumbosacral strain with degenerative joint and disc disease is denied. The Veteran is currently in receipt of a 40 percent disability rating for his service-connected chronic lumbosacral strain with degenerative joint and disc disease pursuant to DC 5237. 38 C.F.R. § 4.71a. When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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. Back disabilities are currently rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula, both before and after the February 7, 2021 rating criteria amendments, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71(a). Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Alternatively, under the Formula for Rating IVDS Based on Incapacitating Episodes prior to February 7, 2021, IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrants the assignment of a 20 percent rating. 38 C.F.R. § 4.71A, DC 5243. IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. Id. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note (1) indicates that for purposes of evaluations 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. As noted above, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders and, while DC 5237 was not revised, DC 5243 for IVDS was modified to clarify that DC 5243 is to be assigned "only when there is disc herniation with compression and/or irritation of the adjacent nerve root"; otherwise, "assign [DC] 5242 for all other disc diagnoses." However, the rating criteria addressing IVDS based on incapacitating episodes was otherwise unchanged. After a review of the evidence, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran's chronic lumbosacral strain with degenerative joint and disc disease at any time during the period on appeal. VA examination reports and medical evaluations throughout the pendency of the claim contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis, which is required for a 50 percent, or 100 percent rating. There is no evidence of record indicating that the Veteran's thoracolumbar spine, or entire spine, is fixed in flexion or extension. Thus, by definition, he does not have the required ankylosis, favorable or unfavorable to warrant a higher rating. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure.")); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Thus, although the Board acknowledges the Veteran's competent and credible reports of increased back pain, the Board finds that the criteria for an evaluation greater than 40 percent are not met. 38 C.F.R. § 4.71a, DC 5237. In this regard, the Board has considered the evidence of record indicating that the Veteran was unable to bend, which was noted at the November 2020 VA examination; however, physical examination at that time revealed that, even after three repetitions, the Veteran had forward flexion to 40 degrees and extension to 20 degrees. The Board does not find that this more closely approximates all or part of the spine that is fixed in flexion or extension. Furthermore, the November 2020 VA examiner specifically indicated that the Veteran did not have ankylosis of the spine. Accordingly, the Board does not find that the Veteran's "inability" to bend, noted at his November 2020 VA examination, more closely approximates ankylosis of the spine warranting a higher disability rating. Thus, the Board finds that record does not demonstrate that the Veteran had unfavorable ankylosis of the thoracolumbar spine at any time during the period on appeal. 38 C.F.R. § 4.71(a). To the extent that the VA examinations failed to comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In this respect, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995), this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis or other symptoms unrelated to limitation of motion, 38 C.F.R. § 4.40 and 4.45 are not for application. Consideration has been given to assigning a rating under DC 5243, based on incapacitating episodes. However, there is no evidence of record indicating that the Veteran experiences incapacitating episodes which require medically prescribed bed rest under both the pre- and post-amended rating criteria. Furthermore, the Board notes that the Veteran is already rated separately for his left lower extremity radiculopathy and rating him under the code for IVDS would require the cessation of those bilateral lower extremity radiculopathy ratings. (This is so because the notes pertaining to the general rating criteria are separate from the notes pertaining to IVDS; the note allowing for separate ratings for neurologic conditions is found only in the section for the general rating criteria, and the regulations are clear that a back disorder may only be rated under the general rating criteria or the IVDS criteria.) In viewing the rating assigned under the general rating schedule for evaluating the back, in conjunction with the separate rating for the right and left leg neurologic condition, it is clear that the IVDS rating code would not result in an overall higher rating for the Veteran. Therefore, higher rating based on incapacitating episodes is not available, and the Veteran is properly rated based on pain and limitation of motion. 38 C.F.R. § 4.71a. Consideration has also been given to assigning a separate compensable rating for neurological impairment in the lower extremities or other neurological abnormalities related to the low back disability such as bowel or bladder incontinence. Initially, to the extent that the evidence reflects that the Veteran has left lower extremity radiculopathy, the Board notes that the Veteran is already service connected for radiculopathy of the left lower extremity, and that issue will be addressed below. None of the medical evidence reflects, nor does the Veteran contend, that he had bowel or bladder incontinence or any other neurological impairment due to his back disability. Therefore, additional ratings are not warranted on this basis. In summary, the Board finds that, based on the available evidence of record, the evidence is persuasively against a rating in excess of 40 percent for the Veteran's service-connected chronic lumbosacral strain with degenerative joint and disc disease. As the evidence is persuasively against the claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107. 2. Entitlement to a rating of 10 percent, but no higher, from April 1, 2015 and a rating of 20 percent, but no higher, from December 22, 2021 for left lower extremity radiculopathy is granted. Effective April 13, 2017, the Veteran has been in receipt of a 10 percent disability rating for left lower extremity radiculopathy associated with his chronic lumbosacral strain with degenerative joint and disc disease pursuant to Diagnostic Code 8520. 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. 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 lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a. After a review of the evidence above, the Board finds that a rating of 10 percent, but no higher, is warranted for the Veteran's left lower extremity from April 2015 and a rating of 20 percent is warranted effective December 2021 for the Veteran's left lower extremity radiculopathy. In this regard, the Board notes that a review of the evidence throughout the period on appeal reflects that left lower extremity radiculopathy associated with the Veteran's low back disability was noted as early as April 1, 2015 in a private treatment record, and a June 2015 private treatment record indicates reports of back pain that radiated down the left leg and a mildly positive straight leg test on the left. Further, an August 2015 private treatment record also notes complaints of low back pain and left leg pain. Although the April 2015 VA examiner found that the Veteran did not have radiculopathy, the Board resolves reasonable doubt in favor of the Veteran and finds that a 10 percent disability rating is warranted for mild radicular symptoms from April 1, 2015. A rating in excess of 10 percent is not warranted at any time prior to December 22, 2021, however, as there is no indication in the record that demonstrates that the Veteran experienced anything more than mild symptoms during this period. In this regard, in addition to the June 2015 private record noted above, the April 2017 VA examiner indicated that the Veteran had mild left sciatic nerve involvement due to the Veteran's reported intermittent pain that proceeds from the left low back down across the buttock to the back of the left thigh and straight down the middle back of the left thigh. Additionally, the November 2020 VA examiner noted mild left lower extremity radiculopathy due to the Veteran's reported symptoms of mild paresthesias and/or dysesthesias. Thus, there is no indication in the record that the severity of the Veteran's left lower extremity radiculopathy more closely approximated moderate functional impairment to warrant a higher disability rating at any time during the period prior to December 22, 2021. For the period from December 22, 2021, however, the Board finds that the Veteran's left lower extremity radiculopathy more closely approximates moderate functional impairment. In this regard, although the December 2021 VA examiner did not specifically opine on the level of functional impairment or level of severity of the Veteran's left lower extremity radiculopathy, due to the Veteran's reports of moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the left lower extremity, the Board resolves reasonable doubt in favor of the Veteran and finds that a 20 percent disability rating is warranted for this period. A rating in excess of 20 percent is not warranted, however, as there is no evidence, lay or medical, indicating that the Veteran had moderately severe or severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. Based on the foregoing, affording the Veteran the benefit of the doubt, the Board finds that a 10 percent disability rating is warranted from April 1, 2015 and a 20 percent disability rating is warranted from December 22, 2021 for his left lower extremity radiculopathy. 3. Entitlement to an initial compensable rating for low back scar is denied. The Veteran is currently in receipt of a noncompensable evaluation for his low back scar pursuant to Diagnostic Code 7802. 38 C.F.R. § 4.118. During the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.118. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). As the Veteran filed his claim before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. The pre-amended Diagnostic Code 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). In contrast, the amended Diagnostic Code 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (August 13, 2018). Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic 7801. Note (1) to the pre-amended Diagnostic Code 7801 stated that a deep scar is one associated with underlying soft tissue damage. Prior to August 13, 2018, Diagnostic Code 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic 7802 (2017). The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (August 13, 2018). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. Under both the old and new rating criteria, Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic 7804. Under the old rating criteria, Diagnostic Code 7805 provided that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). The Board notes that this diagnostic code is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, Diagnostic Code 7805 (August 13, 2018). After a review of the evidence, the Board finds that a compensable rating for the Veteran's low back scar is not warranted any time during the period on appeal. The evidence does not reflect that the Veteran's low back scar covers 144 square inches (929 square centimeters) or greater, as required for a 10 percent rating under both the pre-and post-amended rating criteria. 38 C.F.R. § 4.118, DC 7802. Rather, as noted above, the record reflects that the Veteran had one low back scar measuring approximately no more than 5 centimeters by 0.5 centimeters, which is no more than 2.5 square centimeters. Therefore, the Board finds that a compensable evaluation is not warranted for the Veteran's left shoulder scar under DC 7802. The Board has considered whether other ratings are applicable to the Veteran's low back scar. A disability rating under Diagnostic Codes 7801 is not warranted because the Veteran's scar was not at least 6 square inches, as noted for a 10 percent rating under DC 7801 under both the pre- and post-amended criteria. Nor is a compensable rating warranted under DC 7804 because the Veteran's low back scar was neither painful nor unstable, as required for a compensable rating under both the old and new rating criteria. Furthermore, there is no basis to assign a compensable rating for the Veteran's low back scar pursuant to DC 7805. There are no additional symptoms noted at any time during the period on appeal, which have not already been considered under DC 7802, nor has the Veteran contended otherwise. Accordingly, the Board finds that the Veteran's impairment due to his low back scar is more consistent with a noncompensable disability rating and that the level of disability necessary to support the assignment of a compensable rating under DC 7805 is absent. The Board additionally notes that DC 7800 is not applicable as it relates specifically to scars of the head, face, or neck. 38 C.F.R. § 4.118. Accordingly, the Board finds that a rating in excess of zero percent is not warranted for the period on appeal for the Veteran's low back scar. As the evidence is persuasively against the claim for a higher rating, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) from August 11, 2020 is granted. The Veteran contends he has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities since May 2011. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). The Veteran's claim for TDIU was received in conjunction with his increased rating claim on appeal for his back disability, on January 1, 2015. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Specifically, a January 2015 correspondence from the Veteran indicates that he stopped working in May 2011 because he was no longer able to endure the chronic pain and fatigue. He indicated that he applied for Social Security Administration (SSA) disability benefits and was granted benefits in March 2012. Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). For the period on appeal, the Veteran has been in receipt of the following disability ratings: a 50 percent disability rating for posttraumatic stress disorder (PTSD) effective August 11, 2020; a 40 percent disability rating for chronic lumbosacral strain with degenerative joint and disc disease effective August 1, 1996; a 10 percent disability rating from April 1, 2015 and a 20 percent disability rating from December 22, 2021 for left lower extremity radiculopathy; a noncompensable evaluation from August 1, 1996 and a 10 percent disability rating from August 11, 2020 for scotoma, toxoplasmosis chorioretinitis, and vitreous degeneration of the left eye; a 10 percent disability rating for tinnitus from August 11, 2020; a noncompensable evaluation for a low back scar from April 13, 2017, and a noncompensable evaluation from August 11, 2020 for bilateral hearing loss. His total combined rating is 50 percent prior to August 11, 2020 and 80 percent thereafter. Therefore, the Veteran does not meet the schedular criteria for the period prior to August 11, 2020 but does meet the schedular criteria from August 11, 2020. For the reasons below, the Board finds that a TDIU is warranted as of August 11, 2020, and a remand is necessary to determine whether he is entitled to a TDIU prior to that date. SSA records reveal that the Veteran was found to be disabled due to disorders of the back and osteoarthritis and allied disorders since May 2011. These records reflect that the Veteran claimed he became too disabled to find another job in May 2011 due to his disabilities, which included degenerative disc disease and herniated discs, restless leg syndrome, depression, diverticulitis, toxoplasmosis in the eyes, and foot problems. He indicated that he had worked as a marine instructor from 1996 to May 2011 and had two years of college education. In the Veteran's VA Form 21-8940 Application for Increased Compensation Based on Unemployability, received in February 2015, the Veteran indicated that he was no longer able to work due to his back disability, chronic fatigue, and restless leg syndrome. The Veteran indicated that he last worked as a teacher/instructor until May 2011 and became too disabled to work on May 27, 2011. In addition to the evidence described above in relation to his back disability, left lower extremity radiculopathy, and low back scar, a May 2021 VA examination for hearing loss and tinnitus notes that the Veteran reported difficulty hearing and understanding conversations without hearing aids; he indicated that he had to ask people to repeat themselves due to his hearing loss and his tinnitus interfered with his sleep. A June 2021 VA examination for his PTSD notes that he had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation; this was based on the Veteran's symptoms of depressed mood; anxiety; suspiciousness; circumstantial, circumlocutory or stereotyped speech; difficulty in establishing and maintaining effective work and social relationships; and suicidal ideation. A September 2021 VA examination for his service connected eye disorder notes that the Veteran reported experiencing some mild floaters, and the examiner indicated that the Veteran's eye disorder did not impact his ability to work. Based on the evidence of record, the Board finds that entitlement to a TDIU is warranted for the period from August 11, 2020. Although the VA examinations of record during this period do not provide any opinion that the Veteran was unable to work, the symptoms documented on VA examinations as associated with the Veteran's service-connected back disability and left lower extremity radiculopathy include the inability to lift more than seven to eight pounds, bend, twist more than 10 degrees, sit more than 15 to 20 minutes, stand more than 25 to 30 minutes, run, jump, climb, kneel, and squat. Additionally, symptoms associated with his service connected PTSD made it difficult to communicate with and be around people and affected his mood and his hearing loss made it difficult for him to understand conversation. Thus, in light of the Veteran's extensive work history as high school marine corps leadership teacher, the Board finds that the evidence shows that his service-connected disabilities impede his ability to work due, primarily, to his physical limitations, as well as impairment in social and occupational areas of functioning. In making this finding, the Board resolves reasonable doubt in the Veteran's favor. The VA examinations of record comment on occupational impairment caused by the service-connected disability for which the examination was provided, without providing any opinion as to combined effects of his service-connected disabilities on his employability. Thus, the Board finds that the evidence is at least in equipoise as to whether the Veteran has been unable to secure or follow substantially gainful employment as a result of his service connected disabilities for the period from August 11, 2020. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS FOR REMAND As discussed above, the Board finds that the Veteran is entitled to a schedular TDIU from August 11, 2020. However, he does not meet the percentage requirements for such a rating under 38 C.F.R. § 4.16(a) prior to that date. When a claimant is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), such case shall be submitted to the Director, Compensation Service (Director), for extraschedular consideration of entitlement to a TDIU. 38 C.F.R. § 4.16(b). The Board may not assign an extraschedular rating in the first instance. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Board must therefore decide whether referral to the Director for extraschedular consideration is appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The standard for extraschedular referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). This standard is lower than that for the decision to grant a TDIU on the merits. Id. at 62. Here, the Board finds sufficient evidence for referral. Notably, the record reflects that the Veteran was awarded SSA disability benefits in November 2011 for, primarily, his back disability, and the April 2015 VA examiner indicated that the Veteran was currently unable to work because of back pain; these functional impairments (back pain) impact his ability to work at both administrative and high school drill work. Additionally, the Veteran has submitted multiple personal statements to this effect. Therefore, the Board finds that a referral for extraschedular consideration of entitlement to a TDIU for the period prior to August 11, 2020 is warranted. The matters are REMANDED for the following action: Refer the case to VA's Director of Compensation for consideration of entitlement to TDIU under the provisions of 38 C.F.R. § 4.16(b) for the period prior to August 11, 2020. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.