Citation Nr: 22018682 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 15-18 573A DATE: March 30, 2022 ORDER Entitlement to an increased, 20 percent disability evaluation for intervertebral disc syndrome (IVDS), to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, for the rating period prior to July 1, 2014, is granted. Entitlement to an increased disability evaluation for IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, rated as 20 percent disabling for the rating period from July 1, 2014 to January 3, 2022, is denied. Entitlement to an increased disability evaluation for IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, rated as 40 percent disabling for the rating period since January 4, 2022, is denied. Entitlement to an increased disability evaluation for radiculopathy of the right lower extremity, currently rated as 20 percent disabling, is denied. REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the rating period prior to January 4, 2022, the Veteran's IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, is manifested by pain on motion, with functional loss due to pain upon movement. Forward flexion is limited to no worse than 50 degrees, and the Veteran does not have ankylosis or its equivalent during flare-ups. 2. For the rating period since January 4, 2022, the Veteran's IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, is manifested by pain and forward flexion of the thoracolumbar spine to 25 degrees, without ankylosis or its equivalent during a flare-up. 3. The Veteran's right lower extremity radiculopathy is productive of moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation of 20 percent, but no higher, for IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, for the rating period prior to July 1, 2014, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 5243 (2021). 2. The criteria for a disability evaluation in excess of 20 percent for IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, for the rating period prior to January 4, 2022, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 5243 (2021). 3. The criteria for a disability evaluation in excess of 40 percent for IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, for the rating period since January 4, 2022, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 5243 (2021). 4. The criteria for a disability evaluation in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8720 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Navy from January 1980 to January 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2013, July 2014, and May 2015 rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The March 2013 rating decision awarded service connection for facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, and assigned a 10 percent disability evaluation, effective May 9, 2012. The July 2014 rating decision denied the Veteran's claim of entitlement to TDIU, and the May 2015 rating decision awarded service connection for radiculopathy of the right lower extremity and assigned a 20 percent disability evaluation, effective July 1, 2014. In a January 2022 rating decision, the Veteran was awarded an increased, 40 percent disability evaluation for his service-connected thoracolumbar spine disability, and his facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration was recharacterized as IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, effective January 4, 2022. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2019 and October 2021, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in January 2022. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5201, 5269). 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. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to an increased disability evaluation for intervertebral disc syndrome (IVDS), to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, rated as 10 percent disabling for the rating period prior to July 1, 2014. 2. Entitlement to an increased disability evaluation for IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, rated as 20 percent disabling for the rating period from July 1, 2014 to January 3, 2022. 3. Entitlement to an increased disability evaluation for IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, rated as 40 percent disabling for the rating period since January 4, 2022. The Veteran is assigned a 10 percent disability rating for his facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, for the rating period prior to July 1, 2014 and a 20 percent disability evaluation for the rating period from July 1, 2014 through January 3, 2022 pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5242. For the rating period since January 4, 2022, the Veteran is in receipt of a 40 percent disability rating for his IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243. Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as 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. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 10 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is to be 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 evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235 for vertebral fracture or dislocation; 5236 for sacroiliac injury and weakness; 5237 for lumbosacral strain; Diagnostic Code 5238 for spinal stenosis; Diagnostic Code 5239 for spondylolisthesis or segmental instability; Diagnostic Code 5240 for ankylosing spondylitis; Diagnostic Code 5241 for spinal fusion; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. Prior to January 4, 2022 The Veteran contends that he is entitled to a higher rating because his current disability evaluation does not property account for the severity of his symptoms. After a review of all the evidence, the Board finds that the Veteran's disability picture more nearly approximates the criteria for a 20 percent disability evaluation, for the entire rating period prior to January 4, 2022 for his service-connected facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration. At the December 2012 VA examination, the Veteran had forward flexion to 90 degrees, extension to 25 degrees, right lateral flexion to 20 degrees and left lateral flexion to 30 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. The examination report reflects that that the Veteran experienced pain on all planes of motion, with range of motion reduced to 70 degrees flexion and to 20 degrees extension; left lateral flexion was reduced to 25 degrees and left lateral rotation was reduced to 20 degrees. There was tenderness to palpation and muscle spasm and/or guarding, but without abnormal gait or spinal contour; there was no evidence of muscle atrophy or ankylosis. The VA examination report indicates that there was pain on motion, without incoordination or weakness; strength and reflex testing was normal. The VA examiner found that the Veteran does not have IVDS, and that he does not experience incapacitating episodes. The VA examiner also noted that the Veteran does not require use of an assistive device, and that the Veteran's functional loss was reduced range of motion due to pain. The July 2014 VA examination report reflects that the Veteran had forward flexion to 35 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees; repetitive use testing did not result in a reduction of range of motion. The Veteran complained of daily flare-ups with activity, resolved with rest. There was tenderness to palpation, but there was no evidence of muscle spasm, guarding, muscle atrophy, or ankylosis; strength testing was normal. The VA examiner found that the Veteran has IVDS, but that he does not experience incapacitating episodes. The VA examiner also noted that the Veteran does not require use of an assistive device, and that the Veteran's functional loss was reduced range of motion due to pain on At the December 2019 VA examination, the Veteran had forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. Repetitive use testing did not reflect a reduction in range of motion. The Veteran complained of pain on bending, heavy lifting, prolonged walking and standing, as well as stiffness. There was pain on weight-bearing and tenderness to palpation, but there was no evidence of muscle spasm, guarding, or muscle atrophy. The VA examination report indicates that there was pain on movement and at rest, but there was no evidence of incoordination, fatigability, or weakness; strength and reflex testing was normal. The VA examiner found that the Veteran does not have IVDS, and that he does not experience incapacitating episodes. The VA examiner also noted that the Veteran does not require use of an assistive device. VA treatment records dated throughout the rating period on appeal reflect that the Veteran was treated for back pain. The lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating at any time during the appeal period. The evidence shows that the Veteran experiences forward flexion of the thoracolumbar spine which is better than 30 degrees which is required for a higher rating based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 5242. Here, the lay evidence has been considered; however, that evidence when accepted as correct does not establish that he is functionally limited to 30 degrees or less forward flexion. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine during the rating period on appeal. Additionally, the Veteran does not experience incontinence or bowel complaints as a result of his service-connected facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the thoracolumbar spine during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). To the extent that the Veteran reports flare-ups limiting his ability to bend and lift objects, as well as complaints of difficulty with prolonged activity, the Board finds that the Veteran's flare-ups do not show that the evidence more nearly approximates a disability picture with forward flexion of the spine limited to 30 degrees or less not do they demonstrate motion limited to the equivalent of ankylosis. 38 C.F.R. §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine; Chavis v. McDonough, Vet.App. , No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare."). Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating at any point during the rating period prior to January 4, 2022. With respect to a higher evaluation based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as noted earlier, the Board points out that the evidence is conflicting as to whether the Veteran had intervertebral disc syndrome during this rating period. Regardless, the Veteran's VA examination reports reflect that the Veteran does not experience incapacitating episodes requiring physician prescribed best rest having a total duration of at least 4 weeks during a 12-month period as contemplated by a higher evaluation. Review of the Veteran's treatments record also do not reveal any periods of physician prescribed bed rest. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran was granted service connection for radiculopathy of the right lower extremity and assigned a separate disability evaluation for this extremity; neurological evaluation of the left lower extremity was normal. As the Veteran is separately evaluated for his lower extremity neurological deficits, it will be addressed later in this decision. As such, the Board finds that the evidence of record reveals manifestations consistent with a 20 percent evaluation, but no higher, for the entire rating period on appeal for service-connected facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration. Since January 4, 2022 After a review of all the evidence, the Board finds that the Veteran's disability picture does not warrant a disability evaluation in excess of the currently assigned 40 percent disability rating for the rating period since January 4, 2022. In this regard, the Board notes that the January 2022 VA examination report reflects that the Veteran had flexion to 25 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and lateral rotation to 30 degrees bilaterally; he had pain on motion, without additional functional loss, but he did not have pain on weight-bearing. The VA examiner noted that the Veteran's flexion improved to 40 degrees with repetitive use, but extension decreased to 20 degrees; the VA examiner also noted that the Veteran had flexion to 85 90 degrees when he bent over from a seated position to tie his shoes. There was no evidence of tenderness to palpation, muscle spasm and/or guarding, muscle atrophy, or ankylosis. The Veteran denied experiencing flareups, but reported that he experiences functional loss due to limits on bending, prolonged walking, standing, and sitting, and heavy lifting. Upon testing, muscle strength was full, and reflexes were normal. The VA examiner noted that the Veteran had IVDS, but did not experience incapacitating episodes; the VA examiner noted that the Veteran occasionally used a cane to ambulate. In accordance with the above, the Veteran is entitled to a 40 percent disability evaluation, but no higher, for his service-connected IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration. The Board finds that the criteria for a disability rating of 50 percent have not been met or more nearly approximated. As noted, the evidence does not demonstrate the presence of ankylosis or its equivalent during a flare-up. The Board has considered the lay evidence of pain. However, that evidence does not establish that there is ankylosis as required for a higher rating. As previously noted, throughout the rating period on appeal, the Veteran had flexion to no worse than 25 degrees on range of motion, and that other planes of motion did not show decreased range of motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the Board observes that the January 2022 VA examiner noted that some of the Veteran's symptoms and limitations actually improved with repetitive use and that he had nearly full range of flexion from a seated position. Moreover, the Veteran's use of a cane is no more than occasional. The Board has also considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion, and there is no evidence that his pain is the equivalent of ankylosis. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Chavis v. McDonough, Vet. App., No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare.").). To the extent that the Veteran reports limitations on his ability to bend and lift objects, the Board finds that the evidence does not demonstrate that the Veteran's manifestations more nearly approximates a disability picture with ankylosis. 38 C.F.R. §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 40 percent disability rating at any point during the rating period on appeal. The Board acknowledges that the January 2022 VA examiner found that the Veteran has IVDS. However, his IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, has not been productive of incapacitating episodes at any time during the rating period on appeal. The Veteran has not reported, and the evidence does not demonstrate, that the Veteran experienced incapacitating episodes requiring bed rest; the Veteran's VA examination reports and treatment records do not demonstrate that his treating physicians noted any incapacitating episodes or prescribed bed rest. Thus, a higher rating based on IVDS would not be warranted in any case. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of separate disability evaluations for his right lower extremity neurological deficits. He does not experience any neurological deficits of the left lower extremity. As discussed above, the Veteran is does not experience bladder or bowel dysfunction due to his back condition. Therefore, the Board finds that the evidence does not support a disability evaluation in excess of 40 percent for the Veteran's service-connected IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration. 4. Entitlement to an increased disability evaluation for radiculopathy of the right lower extremity, currently rated as 20 percent disabling. The Veteran is currently assigned a 20 percent disability evaluation for his radiculopathy of the right lower extremity pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8720. Under Diagnostic Code 8720, a 20 percent evaluation is assigned for neuralgia with moderate incomplete paralysis of the sciatic nerve and a 40 percent disability rating requires moderately severe incomplete paralysis. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8720. "Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2 (last visited Oct. 16, 2021). "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Oct. 16, 2021). "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Oct. 16, 2021). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). After a review of all the evidence, the Board finds that the Veteran's right lower extremity radiculopathy most closely approximates the criteria for the currently assigned 20 percent disability evaluation. In this regard, the Board notes that, at the December 2019 VA peripheral nerves examination, the Veteran's right lower extremity radiculopathy of the sciatic nerve manifestations were described as moderate for the right lower extremity; his symptoms were described as mild at the January 2022 VA peripheral nerves examination. The Veteran's symptoms were also described as moderate at a July 2014 VA back examination. To this point, the Board observes that the Veteran had moderate intermittent pain at the July 2014 VA back examination, as well as moderate pain and paresthesias and/or dysesthesias at the December 2019 VA peripheral nerves examination. Although he reported experiencing severe pain, paresthesias and/or dysesthesias, and numbness at the January 2022 VA peripheral nerves VA examination, the contemporaneous examination report reflects that the Veteran had normal sensation to light touch, that there was no evidence of muscle atrophy or trophic changes, and that his gait was normal. Likewise, at all of his VA examinations, his reflexes were intact and muscle strength was full. The Board points out that the Veteran's symptomatology was relatively consistent during the rating period on appeal, and the Veteran's VA treatment records for the rating period do not demonstrate a worsening of manifestations consistent with moderately severe radiculopathy of the right lower extremity. The Board finds that, in considering the evidence as a whole, the characterization of the Veteran's symptomatology by the July 2014, December 2019, and January 2022 VA examiners to be highly probative. The VA examiners performed a physical examination and relevant testing, and characterized the Veteran's peripheral neuropathy as productive of no worse than moderate incomplete paralysis of the right lower extremity. Additionally, the dictionary definition of moderate is in accordance with the Veteran's overall disability picture, his symptoms were not violent, severe, or intense, and were limited in scope and effect. Further, he had normal sensation and muscle strength, no atrophy, and his pain was noted to be moderate. All other symptoms were sensory only. In conclusion, the Veteran's symptomatology most closely approximates the criteria for the currently assigned 20 percent disability evaluation for moderate incomplete paralysis of the sciatic nerve as a result of his service-connected right lower extremity radiculopathy for the entire rating period on appeal. The evidence of record does not show that he experiences moderately severe incomplete paralysis of the right sciatic nerve. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124. Accordingly, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for his service-connected right lower extremity radiculopathy. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 5. Entitlement to TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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. 38 C.F.R. § 4.16(a). For purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment.' 38 C.F.R. § 4.16(a) (2019). The Veteran seeks entitlement to TDIU based on his service-connected disabilities. As discussed above, the Veteran is in receipt of a 20 percent disability evaluation for his facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration for the rating period prior to January 4, 2022 and a 40 percent disability evaluation thereafter, for IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, thereafter, as well as a 20 percent disability evaluation for right lower extremity radiculopathy, effective July 1, 2014. A combined disability evaluation of 20 percent is in effect prior to July 1, 2014. A combined 40 percent is in effect for the rating period from July 1, 2014 to January 3, 2022, and a combined disability evaluation of 50 percent is in effect from January 4, 2022. See 38 C.F.R. § 4.25. As such, the Veteran does not meet the schedular criteria for TDIU at any time during the appeal period. However, Veteran's who do not meet the schedular criteria can still be awarded TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). Pursuant to Ray, entitlement to an extraschedular TDIU must be referred to the Director for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). When denying an extraschedular TDIU referral to the Director under § 4.16(b), the Board must make two determinations in its decision: (1) that a referral for extraschedular TDIU is not warranted under the "reasonable possibility" standard set forth in Ray, and (2) that TDIU benefits are not warranted because the veteran is not unemployable due to service-connected disabilities. See Snider v. McDonough, ___ Vet.App. ___, No. 19-6707, (CAVC Nov. 19, 2021). VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran submitted a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in March 2014, wherein he reported that he had a high school education and that he worked pouring concrete prior to becoming too disabled to work in January 2009; he reported that he has not sought training or education, and that he did not seek other employment, since becoming too disabled to work. The Veteran also submitted a VA Form 21-4140, Employment Questionnaire, in May 2014, wherein he reported that he was self-employed as a concrete contractor from March 2013 to December 2013. The July 2014 VA examination report indicated that the Veteran's IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, impacted his ability to work by impairing his ability to engage in prolonged walking or bending. In December 2014, the Veteran's former employer submitted a completed VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). His employer indicated that he worked pouring concrete until October 2014 wherein he was laid off due to lack of work; a start date was not noted. The employer noted that the Veteran was able to take time off as needed for his back, but did not provide any detailed information as to how much time was taken. The Veteran is in receipt of Social Security disability benefits; however, these benefits were not awarded solely due to his back, but also due to an unspecified, nonservice-connected blood disease; the Board notes that the Veteran's VA treatment records reflect that the Veteran is being treated for hepatitis C and cirrhosis of the liver related to alcoholism. At the January 2022 VA examinations, the Veteran reported that he retired from concrete work in 2012. The VA examiner found that the Veteran's IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration, and radiculopathy of the right lower extremity had functional impact on his ability to work to the extent that he was limited as to bending, prolonged walking, standing, or sitting, and cannot lift more than 25 pounds. Based on the evidence of record, the Board finds that the Veteran's claim for TDIU should be referred to the Director of Compensation for extraschedular consideration. The evidence shows that, based on his work history in manual labor, his education level and his back disability's impact on his ability to do sedentary work involving sitting, see January 4, 2022, VA examination, there is sufficient evidence to substantiate a reasonable possibility that the Veteran's service-connected disabilities of IVDS, to include facet arthropathy and arthritis of the thoracolumbar spine with disc degeneration , and radiculopathy of the right lower extremity render him unemployable. Thus, referral of TDIU to the Director of Compensation for extraschedular consideration of unemployability is warranted. 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. In accordance with 38 C.F.R. § 4.16(b), the RO should refer the Veteran's TDIU claim to the Director of Compensation Service for extraschedular consideration as to whether his service-connected disabilities render him unemployable. 2. Then readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.