Citation Nr: A25017289
Decision Date: 02/26/25	Archive Date: 02/26/25

DOCKET NO. 231025-387396
DATE: February 26, 2025

ORDER

Entitlement to an earlier effective date of February 10, 2017 for the assignment of an increased 40 percent rating for lumbar spine arthritis is granted.

For the entire appeal period, entitlement to an increased rating in excess of 40 percent for lumbar spine arthritis is denied.

Entitlement to an earlier effective date of February 10, 2017 for an increased 20 percent rating for left lower extremity radiculopathy is granted. 

Entitlement to an effective date prior to July 20, 2015 for the award of service connection for right lower extremity radiculopathy with an initial assigned 20 percent rating is dismissed.  

Entitlement to an earlier effective date of February 10, 2017 for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted.

FINDINGS OF FACT

1. The evidence is at least in equipoise as to whether a higher 40 percent rating was warranted from the date of the February 10, 2017 claim.

2. It is not factually ascertainable that an increase in the severity of the Veteran's lumbar spine disability occurred in the one-year period prior to the Veteran's filing of a February 10, 2017 claim. 

3. The evidence of record persuasively weighs against finding that the Veteran's lumbar spine arthritis approximated a rating based on unfavorable ankylosis of the thoracolumbar spine.

4. For the entire appeal period from February 10, 2017, the evidence is at least in equipoise as to whether left lower extremity radiculopathy approximated a rating based on moderate incomplete paralysis of the sciatic nerve. 

5. It is not factually ascertainable that the Veteran had left lower extremity radiculopathy in the one-year period prior to the filing of the February 10, 2017 claim. 

6. The Veteran did not file a timely challenge to the July 20, 2015 effective date of the award of service connection for right lower extremity radiculopathy, with a 20 percent rating assigned from that date.   

7. For the entire appeal period from February 10, 2017, the evidence is at least in equipoise as to whether service-connected disabilities rendered the Veteran unable to secure and follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for an earlier effective date of February 10, 2017 for the assignment of an increased 40 percent rating for lumbar spine arthritis have been met. 38 U.S.C. §§ 1155, 5107, 5110(b)(2); 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5237.

2. For the entire appeal period, the criteria for an increased rating in excess of 40 percent for lumbar spine arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5237.

3. The criteria for an earlier effective date of February 10, 2017 for an increased 20 percent rating left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107, 5110(b)(2); 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.124a, Diagnostic Code 8520.

4. The criteria for an effective date prior to July 20, 2015 for the award of service connection for right lower extremity radiculopathy with an initial 20 percent rating is dismissed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. §§ 20.200, 20.201; Rudd v. Nicholson, 20 Vet. App. 296 (2006).

5. The criteria for an earlier effective date of February 10, 2017 for the award of a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The rating decision on appeal was issued in October 2022. Therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the October 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the October 2022 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

In the October 2023 Notice of Disagreement, the Veteran indicated that he was appealing the 40 percent rating assigned for his lumbar spine disability. He was also seeking (1) an effective date prior to November 4, 2019 for the award of a 40 percent rating for a lumbar spine disability, (2) an effective date prior to November 4, 2019 for the award of 20 percent ratings for bilateral lower extremity radiculopathy, and (3) an effective date prior to November 4, 2019 for the award of a TDIU. Insomuch as the Veteran sought an effective date prior to November 4, 2019 for the assignment of a 20 percent rating for "bilateral" lower extremity radiculopathy, the record shows that he has been assigned a 20 percent rating for right lower extremity radiculopathy since the initial award of service connection for that disability, effective July 20, 2015. The Board has, accordingly, recharacterized those issues on appeal as entitlement to an effective date prior to November 4, 2019 for an increased 20 percent rating for left lower extremity radiculopathy and entitlement to an effective date prior to July 20, 2015 for the award of service connection for right lower extremity radiculopathy with an initial assigned 20 percent rating.

As this appeal involves claims for an earlier effective date with a complicated procedural history, the Board will, as an initial matter, discuss the history of the appeal. The Board finds that the appeal stems from a February 2017 claim for an increased rating for service-connected lumbar spine arthritis and service connection for left lower extremity radiculopathy. The Board finds that a TDIU was raised in conjunction with the appeal for an increased rating. See Rice v. Shinseki, 22 Vet. App. 477 (2009). In a May 2017 rating decision, the AOJ granted service connection for left lower extremity radiculopathy and assigned a 10 percent rating effective the date of the February 10, 2017 claim. In that decision, the AOJ also proposed to reduce the Veteran's rating for service-connected lumbar spine arthritis. A September 2018 rating decision reduced the Veteran's 20 percent rating for lumbar spine arthritis to 10 percent effective December 1, 2018. The Veteran timely appealed the September 2018 rating decision. 

A February 2020 rating decision found that the rating reduction was not proper, restored the Veteran's 20 percent rating for lumbar spine arthritis, and granted an increased 40 percent rating effective November 4, 2019, the date of an updated VA examination. In that decision, the AOJ also continued the Veteran's existing 20 percent rating for right lower extremity radiculopathy, and granted an increased 20 percent rating for left lower extremity radiculopathy effective November 4, 2019. The Veteran submitted a February 2021 Decision Review Request: Hight Level Review appealing the February 2020 rating decision. The Veteran identified appeals to the assigned ratings and the November 4, 2019 effective dates assigned. In an April 2021 Higher Level Review decision, the AOJ identified a duty to assist error and referred the claims for additional development. Thereafter, the AOJ issued a July 2021 rating decision, with notice of the decision issued in August 2021, which continued a 40 percent rating for lumbar spine arthritis and 20 percent ratings for right and left lower extremity radiculopathy.  

The Veteran submitted a timely July 2022 Decision Review Request: Supplemental Claim, appealing the August 2021 decision. An August 2022 rating decision continued the 40 percent rating for lumbar spine arthritis, and continued 20 percent ratings for right and left lower extremity radiculopathy. The Veteran submitted an August 2022 Hight Level Review Request. The October 2022 decision on appeal continued the 40 percent rating for lumbar spine arthritis, and continued 20 percent ratings for right and left lower extremity radiculopathy. The decision also granted a TDIU from November 4, 2019, denied an earlier effective date prior to November 4, 2019 for the award of an increased 20 percent rating for left lower extremity radiculopathy, and denied an earlier effective date prior to November 4, 2019 for the award of an increased 40 percent rating for lumbar spine arthritis. 

The record shows that the Veteran has continuously pursued his appeal for an increased rating for his lumbar spine disability since filling his February 2017 claim, and since he appealed the September 2018 rating decision which implicitly denied the Veteran's claim for an increased rating when it reduced his assigned rating for lumbar spine arthritis. He also timely appealed the February 2020 rating decision insomuch as it assigned an effective date of November 4, 2019 for increased ratings for his lumbar spine disability and left lower extremity radiculopathy. Accordingly, the Board finds that the appeal period runs from the date of the February 10, 2017 claim and the Veteran's appeal for an increased rating for lumbar spine arthritis has been recharacterized to reflect this. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

1. Entitlement to an increased rating in excess of 20 percent for lumbar spine arthritis prior to November 4, 2019 and in excess of 40 percent from November 4, 2019

The effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application." 38 U.S.C. § 5110(a). The effective date for increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date for the increase is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

As noted above, the Board finds that the appeal period runs from the date of the February 10, 2017 claim for an increased rating for a lumbar spine disability and the appeal period for consideration includes the one-year period prior to the date of the claim if it is factually ascertainable that an increase in disability had occurred during that period to warrant a higher rating.

The Veteran's lumbar spine arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion 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 higher 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a at Note 5.

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

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

From February 10, 2017, the Board finds that an increased 40 percent rating is warranted for the Veteran's lumbar spine disability. 

VA treatment records show that the Veteran has been seen for symptoms of chronic back pain with pain radiating into both legs. A February 2017 treatment report showed worsening degenerative disc disease with left greater than right radiculopathy which correlated with MRI findings. VA treatment records dated in 2019 and 2020 show that the Veteran was treated with Tylenol 3 and hydrocodone for pain. The Veteran had tried a TENS unit, injections, water therapy, and mental health therapy in the past for pain, without improvement. He was also not able to tolerate nonsteroidal antiinflammatory drugs (NSAIDs). 

A March 2017 VA examination shows that the Veteran had 70 degrees forward flexion with limited range of motion due to pain. The Veteran exhibited pain with all range of motion. He was able to perform repetitive use testing with at least three repetitions. There was no additional functional loss or loss to range of motion after three repetitions. The Veteran reported having flare-ups of pain, reported with bending and lifting, and prolonged walking and standing. He stated that if he cut the grass, he could not move for one to two days afterward. The examiner was unable to state whether pain, weakness, fatigability, incoordination, or flare-ups of pain significantly limited the Veteran's functional ability over time without mere speculation, reasoning that the Veteran was not in the stated condition to make this determination. The Veteran did not have ankylosis. He did have intervertebral disc syndrome (IVDS), but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. 

During a November 2019 VA examination, the Veteran described pain as averaging a seven to eight out of ten in severity. Back pain was aggravated by prolonged sitting, standing, walking, bending, twisting, squatting, going up and downstairs, lifting, carrying, pushing or pulling objects, and during early morning hours. The Veteran had no relief with a back brace or TENS unit. The Veteran had 27 degrees forward flexion on examination and had pain with all range of motion. He was not able to perform repetitive use testing due to increased pain. The examiner stated that pain caused additional functional loss with repeated use over time. The examiner was not able to express the additional functional loss in terms of range of motion, reasoning, as the Veteran was not experiencing a flare that day, an objective, accurate, measurable estimate of the additional loss of range of motion during a flare could not be derived and a review of treatment records did not show any annotations that would support a finding of significant loss of functionality during any flare-ups. There was no ankylosis of the spine shown on examination. He did have IVDS, but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. 

An August 2022 VA examination shows that the Veteran reported constant low back pain treated with Tylenol 3. The Veteran's back pain resulted in difficulty with walking, with prolonged standing over 15 minutes, with bending over, and with getting dressed. The Veteran did not described flare-ups of pain during the examination. He had 50 degrees forward flexion with pain present with all range of motion. Passive range of motion testing was not performed as it was medically contraindicated. The Veteran reported that his back was too painful to be touched. He was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. The evidence did not suggest that pain, fatigability, weakness, lack of endurance or incoordination significantly limited functional ability with repeated use over time. The Veteran did not have ankylosis. He did have IVDS, but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. 

With consideration of the Veteran's functional loss caused by pain, pain during flare-ups, fatigability, weakness, and lack of endurance, the Board finds that from February 10, 2017, the evidence is at least in equipoise on the question of whether the Veteran had for forward flexion of the thoracolumbar spine to 30 degrees or less, or limitation of motion approximating or favorable ankylosis of the entire thoracolumbar spine to warrant a higher 40 percent rating. The March 2017, November 2019, and August 2022 reflect forward flexion in the thoracolumbar spine measured at 70 degrees, 27 degrees, and 50 degrees, respectively, all with painful motion. With consideration of the Veteran's additional functional loss, to include as due to pain, painful motion, flare-ups of pain, weakness, fatigability, and incoordination, the Board finds that an increased 40 percent rating is warranted for the entire appeal period from February 10, 2017.

The Board finds that it is not factually ascertainable that an increase in the severity of the Veteran's lumbar spine disability occurred in the one-year period prior to the Veteran's filing of a February 10, 2017 claim. While VA treatment records dated in 2016 and early 2017 identify continuous complaints and treatment related to chronic pain in the lumbar spine, lumbar spine pain was contemplated by his 20 percent rating at the time, and it was not factually ascertainable based on the evidence of record prior to February 2017 that his pain and functional loss had increased to the degree such that it resulted in findings approximating the criteria for a 40 percent rating, i.e. flexion limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. There is no indication that the Veteran presented with either symptoms resembling ankylosis, or even a high degree of limitation of flexion. Instead, a July 2016 VA treatment report showed lumbar spine flexion to 90 degrees and while pain was noted in the record, as mentioned, the Veteran already had longstanding pain symptoms due to his service-connected lumbar spine disability which was rated at 20 percent prior to February 10, 2017.

For the entire appeal period, the Board finds that the evidence of record persuasively weighs against a rating in excess of 40 percent. March 2017, November 2019, and August 2022 VA examinations of record all show that the Veteran had no ankylosis in the thoracolumbar spine. All VA examinations of record showed that the Veteran had at least some degree of active range of motion present in the spine on examination even with the Board's consideration of the Veteran's pain, flare-ups of pain, and other functional limitations. While March 2017 and August 2022 VA examinations were not adequate for assessing functional loss to range of motion, they are probative in identifying the absence of ankylosis in the thoracolumbar spine. The Veteran's representative contends that the Veteran's rating should be analogous to ankylosis of the spine based on the Veteran's description of having an incapacitating episode of back pain lasting one to two days after cutting grass. The Board finds, however, that even if the Veteran's range of motion were to approximate 0 degrees flexion due during flare-ups of pain or with pain with repeated use, favorable ankylosis of the entire thoracolumbar spine is contemplated by the assigned 40 percent rating, and his spine disability did not approximate a disability based on the spine being fixed in flexion or extension as indicated for a rating based on unfavorable ankylosis.  

The Board finds that the Veteran's back disability did not manifest in the functional equivalent of unfavorable ankylosis. The Board acknowledges the Veteran's competent and credible reports of back pain symptoms and that there was significant functional loss due to flare-ups of pain, such as when he had a two-day period of incapacitation after cutting grass. However, these symptoms of significant pain and increased pain with flare-ups are considered in the Veteran's 40 percent rating, and neurological effects of the Veteran's spine disability have been separately rated as directed by the General Rating Formula for Diseases and Injuries of the Spine. Considering the Veteran's lay reports of pain, and noted functional loss associated with flare-ups and repetitive use over time, the Board finds that the degree of additional limitation reflected by the statements that would not result in symptoms more nearly approximating "unfavorable" ankylosis of the entire thoracolumbar spine. 

Even when considering the functional limitation during a flare-up and with repetitive use, the Veteran's symptoms do not more nearly approximate the entire spine fixed in flexion or fixed in extension and one of the additional symptoms set forth in Note 5. The record does not indicate that the Veteran had any one more of the following symptoms associated with unfavorable ankylosis, such as 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. For these reasons, the Board finds that, the Veteran's back disability did not manifest in the functional equivalent of unfavorable ankylosis even with flare-ups of pain.

The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating based on IVDS. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. VA examinations show IVDS, but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The General Rating Formula also considers neurological effects of the Veteran's spine disability, and the Veteran has been separately rated for such neurological symptoms. 

Entitlement to an effective date prior to November 4, 2019 for an increased 20 percent rating left lower extremity radiculopathy. 

The Veteran submitted a February 10, 2017 claim for an increased rating for service-connected lumbar spine arthritis and service connection for left lower extremity radiculopathy. A May 2017 rating decision granted service connection for left lower extremity radiculopathy with a 10 percent rating effective February 10, 2017. A February 2020 rating decision granted an increased 20 percent rating for left lower extremity radiculopathy effective November 4, 2019. The Board finds that the appeal period runs from the date of the February 10, 2017 claim. 

Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. 38 C.F.R. § 4.124a. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 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. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).  

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124.

For the entire appeal period from February 10, 2017, the evidence is at least in equipoise as to whether left lower extremity radiculopathy approximated a rating based on moderate incomplete paralysis of the sciatic nerve. 

VA treatment records dated in February 2017 identify worsening bilateral leg pain, with symptoms on the left greater than the right. A February 2017 MRI was consistent with the Veteran left lower extremity radiculopathy. 

A March 2017 VA examination shows that the Veteran reported left lower extremity pain. The Veteran had normal strength and normal reflexes in the lower extremities and no atrophy. He had decreased light touch sensation in the left lower leg and toes. He had mild paresthesias and/or dysesthesias and mild numbness in the left lower extremity. While the examiner stated that he had no pain, intermittent or constant, in the left lower extremity, the Bord finds that this is inconsistent with the Veteran's report of left lower extremity pain noted in the same examination report. The examiner identified mild left lower extremity radiculopathy affecting the sciatic nerve. 

A November 2019 VA examination shows that the Veteran reported lower back pain radiating in the legs and he reported that his legs gave out due to sciatica. With regard to muscle strength, he had active movement against some resistance in left hip flexion and left knee extension. There was no muscle atrophy. He had absent reflexes in the left ankle. A sensory examination was normal. The Veteran had constant pain, mild in degree, in the left lower extremity. The VA examiner assessed the Veteran with moderate radiculopathy in the left lower extremity affecting the sciatic nerve. 

While the March 2017 VA examiner identified mild left lower extremity radiculopathy, the examiner did not adequately address the Veteran's report of pain in the left lower extremity shown on examination and in VA treatment records. The Board finds, therefore, that the May 2017 examination is less probative as to the severity of the Veteran's disability. The November 2019 VA examination identified moderate radiculopathy in the left lower extremity affecting the sciatic nerve. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's radiculopathy approximated a rating based on incomplete paralysis of the sciatic nerve for the entire appeal period from February 10, 2017. Thus, an earlier effective date of February 10, 2017 is granted for the assignment of a 20 percent rating for left lower extremity radiculopathy.

The Board finds that it is not factually ascertainable that the Veteran had left lower extremity radiculopathy in the one-year period prior to the Veteran's filing of a February 10, 2017 claim. VA treatment records show that the Veteran first complained about left lower extremity pain or radiculopathy symptoms in February 2017, around the time he filed his claim. Earlier complaints of radiculopathy in the left lower extremity were not shown. Thus, while the claim for service connection for left lower extremity radiculopathy may be considered as part of the Veteran's increased rating claim for lumbar spine arthritis, it is not factually ascertainable that an increase in disability occurred in the one year period prior to the filing of the February 10, 2017 claim. 

2. Entitlement to an effective date prior to July 20, 2015 for the award of service connection for rating right lower extremity radiculopathy with the assignment of a 20 percent rating from that date

The Veteran and his representative contend in his Notice of Disagreement that an effective date prior to November 4, 2019 is warranted for the assignment of a 20 percent rating for right lower extremity radiculopathy. The record, however, shows that the Veteran has been in receipt of a 20 percent rating for right lower extremity radiculopathy since July 20, 2015, the effective date of service connection was granted for right lower extremity radiculopathy in a December 2015 rating decision. 

The United States Court of Veterans Appeals (Court) has held that, once there is a relevant final decision on an issue, there cannot be a "freestanding claim" for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). In other words, a claimant is not entitled to subsequently make an earlier effective date claim after a prior final denial was not properly appealed. In Rudd, the Court held that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed VA decision. 20 Vet. App. at 299-300.

As noted above, the AOJ granted service connection for right lower extremity radiculopathy with an initial 20 percent rating effective July 20, 2015. Notice of the decision was mailed to the Veteran in December 2015. The Veteran did not file an appeal as to the effective date of the award of service connection within a year of the December 2015 notice of decision and no evidence was submitted within one year of notice of the decision. Therefore, December 2015 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103 (If VA denies a claim and the claimant fails to file an NOD within the one-year period following the decision, that decision becomes final).

In sum, because the Veteran did not timely appeal the effective date of the December 2015 award of service connection with the assigned 20 percent rating, the decision became final. Any subsequent freestanding earlier effective date claim must be dismissed. DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) ("Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded"). Accordingly, the appeal as to entitlement to an effective date prior to July 20, 2015 for service connection for right lower extremity radiculopathy or for the assignment of a 20 percent rating prior to July 20, 2015 is dismissed as a matter of law.

3. Entitlement to an effective date prior to November 4, 2019 for the award of a TDIU

The October 2022 decision on appeal granted a TDIU from November 4, 2019. The Veteran contends that an earlier effective date is warranted. 

The Veteran submitted a February 10, 2017 claim for an increased rating for service-connected lumbar spine arthritis and service connection for left lower extremity radiculopathy. A TDIU was raised in conjunction with the Veteran's appeal for an increased rating for lumbar spine arthritis and left lower extremity radiculopathy. See Rice v. Shinseki, 22 Vet. App. 477 (2009). Thus, the appeal period runs from February 10, 2017. 

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology, or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. 

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Pursuant to this Board's decision, a 40 percent rating has been granted for lumbar spine arthritis from February 10, 2017, and a 20 percent rating has been granted for left lower extremity radiculopathy from February 10, 2017. The Veteran is also service connected for right lower extremity radiculopathy rated at 20 percent for the entire appeal period. He is service connected for hearing loss rated at 0 percent disabling. For the entire appeal period, the Veteran had a combined 60 percent rating from disabilities arising from a common etiology. Thus, he met the schedular percentage requirements under 38 C.F.R. § 4.16(a). 

The Board finds that a TDIU is warranted from the date of the Veteran's February 10, 2017 claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

A March 2017 VA examination shows that the Veteran reported that he previously worked as a nurse but could not continue due to his back disability and radiculopathy. His spine disability resulted in difficulty with lifting, bending, and difficulty with prolonged standing or walking. During a November 2019 VA examination, the Veteran reported functional limitations to prolonged sitting, standing, walking, bending, twisting, squatting, going up and downstairs, lifting, carrying, and pushing or pulling objects. The March 2022 VA examination shows that the Veteran's spine disability and radiculopathy resulted in a limp when the Veteran walks. He had significant difficulty bending forward and twisting his torso. The examiner stated that it would be difficult for him to do any prolonged standing, walking, or bending. Resolving reasonable doubt in the Veteran's favor, the Board finds that for the entire appeal period from February 10, 2017, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. Accordingly, an earlier effective date of February 10, 2017 is warranted for a TDIU. 

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K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kung, Christine

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.