Case 22066930

CLAIRE M. DAVIDOSKI · 2022 · Case ID: 22066930

MIXED

Summary

The veteran, who served, appeals decisions regarding his service-connected low back disability and associated right lower extremity radiculopathy. The Board granted an earlier effective date of August 26, 2010, for an increased rating for his low back condition, finding that the criteria for a 40 percent rating were met due to significant pain, functional impairment, and evidence of radiculopathy since that date. The Board also granted staged ratings for right lower extremity sciatic nerve radiculopathy (10% from April 2012 to April 2016, 20% from April 2016 to July 2017, and 40% since July 2017) and a separate 10% rating for right lower extremity femoral nerve radiculopathy since April 2016, resolving reasonable doubt in the veteran's favor for these conditions. The Board granted a schedular Total Disability based on Individual Unemployability (TDIU) effective April 19, 2016, finding the veteran unable to maintain substantially gainful employment due to his service-connected disabilities. However, the matter of an extraschedular TDIU for the period prior to April 19, 2016, was remanded for further consideration by the Director of Compensation Service, as the veteran met the unemployability criteria but not the schedular percentage threshold for that earlier period. The Board denied a rating in excess of 40 percent for the low back disability since October 31, 2016.

Rationale

Lay and medical evidence showed increased symptoms and functional impairment since August 26, 2010.; Evidence approximated criteria for 40% rating due to pain, functional loss, and radiculopathy.; Reasonable doubt resolved in veteran's favor for the 40% rating.

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

12-07 689

Full Decision Text

Citation Nr: 22066930
Decision Date: 12/01/22 Archive Date: 12/01/22

DOCKET NO. 12-07 689
DATE: December 1, 2022

ORDER

An earlier effective date of August 26, 2010, for the award of an increased rating for the service-connected low back disability is granted.

An increased rating of 40 percent for a low back disability, effective August 26, 2010, to October 30, 2016, is granted.

An increased rating in excess of 40 percent for service-connected a low back disability, to include since October 31, 2016, is denied.

A separate or increased 10 percent rating for right lower extremity sciatic nerve radiculopathy, effective April 9, 2012, to April 18, 2016, is granted.

An increased rating of 20 percent for right lower extremity sciatic nerve radiculopathy, effective April 19, 2016, to July 27, 2017, is granted.

An increased rating of 40 percent for right lower extremity sciatic nerve radiculopathy, effective since July 28, 2017, is granted.

A separate or increased rating of 10 percent for right lower extremity femoral nerve radiculopathy, effective since April 19, 2016, is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU) on a schedular basis, effective since April 19, 2016, is granted.

REMANDED

Entitlement to an extraschedular TDIU prior to April 19, 2016, is remanded.

FINDINGS OF FACT

1. An increase to a higher level of disability for the Veteran's low back was factually ascertainable as of August 26, 2010, but no earlier; and there was no pending claim prior to March 18, 2011, to include based on medical records.

2. Throughout the appeal period, including from August 26, 2010, and prior to October 31, 2016, the Veteran's service-connected low back disability has manifested by pain and painful motion, with forward flexion of the thoracolumbar spine to 30 degrees or less or functional favorable ankylosis during flareups or after repeated use, but no unfavorable ankylosis or incapacitating episodes.

3. From April 9, 2012, to April 18, 2016, the Veteran's right lower extremity had no more than mild incomplete paralysis of the sciatic nerve, contemplating symptoms down the posterior leg, associated with the low back disability.

4. From April 19, 2016, to July 27, 2017, the Veteran's right lower extremity had no more than moderate incomplete paralysis of the sciatic nerve.

5. Since July 28, 2017, the Veteran's right lower extremity has had no more than moderately severe incomplete paralysis of the sciatic nerve.

6. Since April 19, 2016, the Veteran's right lower extremity has had no more than mild incomplete paralysis of the femoral nerve, contemplating symptoms down the anterior leg.

7. The Veteran has met the schedular percentage threshold for a TDIU since April 19, 2016, with a single disability for TDIU purposes rated 60 percent or more.

8. Resolving reasonable doubt in the Veteran's favor, he has been unable to obtain or maintain substantially gainful employment consistent with his educational and occupational history due to service-connected disabilities since at least August 26, 2010, with only marginal employment since years prior to the appeal period.

CONCLUSIONS OF LAW

1. The criteria for an earlier effective date of August 26, 2010, but no earlier, for the award of an increased rating for the service-connected low back disability are met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.155, 3.157, 3.400(o), 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 to 5243 (2014 & 2022).

2. The criteria for a 40 percent rating for a back disability, effective August 26, 2010, through October 30, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.10, 4.40, 4.45, 4
§§ 3.155, 3.157, 3.400(o), 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 to 5243 (2014 & 2022).

3. The criteria for a rating in excess of 40 percent for a back disability, to include since October 31, 2016, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 to 5243.

4. The criteria for a separate or increased 10 percent rating for right lower extremity sciatic nerve impairment associated with the back disability, effective April 19, 2012, to April 18, 2016, are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

5. The criteria for an increased rating of 20 percent for right lower extremity sciatic nerve radiculopathy, effective April 19, 2016, to July 27, 2017, are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

6. The criteria for an increased rating of 40 percent for right lower extremity sciatic nerve radiculopathy, effective since July 28, 2017, are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

7. The criteria for a separate 10 percent rating for right lower extremity femoral nerve impairment, effective since April 19, 2016, are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8626.

8. The criteria for entitlement to a schedular TDIU, effective since April 19, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which increased the evaluation for the Veteran's low back disability from 10 to 20 percent, effective March 8, 2011. In a September 2017 rating decision, the RO increased the evaluation to 40 percent, effective July 28, 2017. The Veteran sought an earlier effective date for his 20 percent rating and even higher disability ratings for his service-connected low back disability.

As a preliminary matter, the complicated history is summarized below as relevant.

In November 2014, the Board remanded the low back disability rating and effective date issues for evidentiary development. The Board also remanded entitlement to service connection for left lower extremity radiculopathy as secondary to the back disability for issuance of a statement of the case (SOC). The SOC was issued in January 2017, and the Veteran submitted a timely substantive appeal (VA Form 9) in February 2017, which asserted entitlement to service connection for radiculopathy of both lower extremities, and requested a Board hearing. The RO responded in a February 2017 letter that VA had not yet made a decision as to service connection for right lower extremity radiculopathy, and informed the Veteran that he must file a proper claim form. Nevertheless, a September 2017 supplemental statement of the case (SSOC) addressed entitlement to service connection for right lower extremity radiculopathy, along with the disability rating and effective date issues for the low back disability considering additional development after the Board remand. A separate SSOC on the same date in September 2017 addressed service connection for left lower extremity radiculopathy, among other issues. In October 2017, the Veteran submitted another substantive appeal (VA Form 9) stating that it was for all issues in the SOC/SSOC, requesting a Board hearing, and requesting compensation for radiculopathy in both lower extremities related to his back, among other issues not relevant at this time.

In a January 2018 decision, the Board granted a 40 percent rating for low back strain effective since October 31, 2016; an earlier effective date of October 7, 2010, for the assignment of a 20 percent rating for low back strain; and a separate rating for right lower extremity radiculopathy associated with the low back disability of 10 percent effective from October 31, 2016, to July 27, 2017, and 20 percent since July 28, 2017. However, the Board stated that radiculopathy of the left lower extremity would not be addressed at that time because the Veteran was awaiting a Board hearing on that issue. Generally, entitlement to separate ratings for associated objective neurologic abnormalities should be considered as part of rating a spinal disability under a rating formula in 38 C.F.R. § 4.71a.

The Veteran appealed from this Board decision to the Court of Appeals for Veterans Claims (Court). In a September 2018 Order pursuant to a Joint Motion for Partial Remand (JMPR) by the parties, the Court vacated and remanded the 2018 decision to the extent that it denied an effective date earlier than October 7, 2010, for the assignment of a 20 percent rating for the low back disability; a rating in excess of 20 percent for the low back prior to October 31, 2016; a rating in excess of 40 percent for low back since October 31, 2016; a rating in excess of 10 percent for right lower extremity radiculopathy from October 31, 2016 to July 27, 2017; and a rating in excess of 20 percent for right lower extremity radiculopathy since July 28, 2017. The parties agreed that the favorable grants should not be disturbed, but the Board erred in issuing the January 2018 decision, as the requested hearing in the February 2017 VA Form 9 had not been scheduled. The JMR noted that the Board declined to address left lower extremity radiculopathy, among other issues, due to a pending hearing request, but stated that the Board should not have issued a decision on any issue on appeal before the requested hearing was held.

Pursuant to the JMR, in a June 2019 Correspondence, the Veteran was notified that a Board hearing was scheduled in this matter for July 2019. The Veteran did not attend the hearing. As the Veteran was properly notified of the time, date and location of the scheduled Board hearing and did not appear, the hearing request was deemed withdrawn, as noted in a January 2020 Board remand.

Meanwhile, in July 2018, the Veteran requested to "opt in" to VA's modernized appeal system under the Rapid Appeals Modernization Program (RAMP) using a Supplemental Claim under the new system. In a January 2019 letter, the RO acknowledged this election and confirmed that the Veteran had withdrawn his pending appeals under VA's legacy appeals system in favor of a new claim under the modernized system. This meant that the Veteran's pending hearing request from his VA Form 9 under the legacy system, as noted in the January 2018 Board decision and the subsequent JMR, also was no longer pending.

A February 2019 rating decision addressed the Veteran's Supplemental Claim pursuant to the RAMP "opt in" and denied service connection for left lower extremity radiculopathy, among other issues. The RO reasoned that two of three VA examiners had found that the Veteran's arthritis and disc disease, along with secondary conditions (including left lower extremity radiculopathy) were unrelated to his service-connected low back strain with myofascial pain. This finding was made despite a contrary finding in the January 2018 Board decision concerning right lower extremity radiculopathy. Specifically, the Board noted that VA examiners in 2011 and 2016 had opined that the Veteran's lumbar arthritis and disc disease or intervertebral disc syndrome (IVDS), along with associated conditions, were not related to his service-connected lumbar strain with myofascial pain. However, the Board found that these opinions were outweighed by another VA examination opinion in 2017 finding that the conditions were related. Accordingly, the Board found that the Veteran's right lower extremity radiculopathy due to such conditions was secondary to his service-connected low back disability, resulting in the separate rating or service connection award.

Nevertheless, the Veteran did not initiate an appeal from the February 2019 rating decision to the Board. Thus, the Board may not address left lower extremity radiculopathy for two reasons: it is no longer under the legacy appeals system, and it was not appealed to the Board under the modernized appeals system.

The February 2019 rating decision pursuant to the RAMP "opt in" also denied a rating in excess of 20 percent for right lower extremity radiculopathy. However, that issue was still under the Board's jurisdiction for the legacy appeal pursuant to the September 2018 remand from the Court under the terms of the JMR. Thus, that issue was not encompassed by the RAMP "opt in" and is still in the legacy system.

In January 2020, the Board remanded the matters on appeal to afford the Veteran another opportunity to attend examinations to determine the current severity and occupational effects of his low back disability and right lower extremity radiculopathy, as well as to obtain updated VA treatment records. The Board noted that the Veteran had indicated that he would be out of town for previously scheduled examinations, but it did not appear the examinations were rescheduled. In this regard, VA records in June 2019 reflect that the Veteran had requested that a VA examination for his back disability be scheduled in Kansas City and in Idaho.

Upon remand, updated VA treatment records through April 2022 were obtained. There is no argument or suggestion that any subsequent records would have a reasonable possibility of aiding in substantiating the claims on appeal.

Although examinations were not provided, VA complied with this remand directive and its duty to assist to the extent possible; thus, there was substantial compliance.

Specifically, the RO attempted to schedule the Veteran for the necessary examinations several times. A July 2021 correspondence requested the Veteran to indicate whether he could report for an examination that had been postponed due to the COVID-19 pandemic. In a July 2021 phone call, the Veteran indicated that he was not yet ready for an examination due to the pandemic. In January 2022, memorandum and report of general information note that the RO tried to call the Veteran about missed examinations and left a voicemail, and the RO was unable to schedule examinations because they were unable to contact the Veteran. On February 1, 2022, and March 7, 2022, the RO sent letters to the Veteran's last known address at that point asking him to contact the RO to schedule examinations for his issues on appeal. Those letters were not returned, and he did not respond.
he could report for an examination that had been postponed due to the COVID-19 pandemic. In a July 2021 phone call, the Veteran indicated that he was not yet ready for an examination due to the pandemic. In January 2022, memorandum and report of general information note that the RO tried to call the Veteran about missed examinations and left a voicemail, and the RO was unable to schedule examinations because they were unable to contact the Veteran. On February 1, 2022, and March 7, 2022, the RO sent letters to the Veteran's last known address at that point asking him to contact the RO to schedule examinations for his issues on appeal. Those letters were not returned, and he did not respond.

On June 1, 2022, a letter dated in May 2022 from the RO to the Veteran, with a copy to his attorney, stating that his appeal was being certified to the Board was returned as undeliverable. The RO resent the letter to a new address for the Veteran, but it was again returned as undeliverable on June 23, 2022. On August 24, 2022, the Board resent a copy of the Board's notice of receipt and docketing of the appeal and associated procedural rights, as well as the April 2022 supplemental statement of the case (SSOC), to the Veteran's last known address and his attorney's official address listed with VA's Office of General Counsel for accreditation to practice before VA and the Board. The mailings to the Veteran's attorney were not returned. However, in September 2022, the documents to the Veteran were again returned; they were resent to the same address but were again returned as undeliverable in October 2022.

The Veteran has a duty to inform VA of his current address, and neither he nor his attorney has done so. He also has an obligation to cooperate with VA's attempts to conduct development for his claim. VA made multiple efforts to attempt to provide relevant procedural documents, as well as to schedule examinations necessary to adjudicate his appeals, including through phone calls and letters. Thus, VA satisfied its duty to assist to the extent possible, and no further remand is warranted.

Increased Ratings and Effective Dates

VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and applicable rating criteria. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

A separate or higher rating may be assigned based on non-overlapping conditions and symptoms, if the compensable criteria under applicable diagnostic codes are met, including with consideration of additional functional loss after repetitive use or flare-ups for musculoskeletal conditions based on range of motion. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Pain itself does not constitute functional loss, and painful motion must result in functional loss to constitute limited motion for a rating under diagnostic codes based on limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides for assignment of a separate rating for any associated objective neurological abnormalities. The identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. If there is intervertebral disc syndrome (IVDS), the disability will be rated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The method that results in
a distinct period during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides for assignment of a separate rating for any associated objective neurological abnormalities. The identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. If there is intervertebral disc syndrome (IVDS), the disability will be rated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 should be used. See 38 C.F.R. § 4.71a, DCs 5237 & 5243, General Rating Formula & Note, IVDS Formula & Notes (2020 & 2022).

VA amended the regulations for rating spinal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (now codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, & 5244 (2021)). As relevant to this case, these changes result in distinctions between IVDS (which is still rated under DC 5243 as an alternative to the General Rating Formula as summarized above) and degenerative disc disease other than IVDS (which is now rated under DC 5242 but not DC 5243). These changes do not apply to ratings prior to February 7, 2021, but the Veteran is entitled to application of the most favorable criteria effective since February 7, 2021. The addition of DC 5244 is for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable to this case.

Under the General Rating Formula, a 10 percent rating will be assigned where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine 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 rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating is assigned 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 assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237 & 5243, General Rating Formula.

For this purpose, VA defines unfavorable ankylosis as when 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 (0 degrees) always represents favorable ankylosis. Id., General Rating Formula, Note (5).

The Court has clarified that the criteria for a rating based on ankylosis of the spine may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. This includes consideration of additional loss during flareups or repeated use over time due to pain and other factors under sections 4.40 and 4.45, pursuant to Mitchell, supra. The Court stated that ankylosis is an objective finding and not a diagnosis
luxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Id., General Rating Formula, Note (5).

The Court has clarified that the criteria for a rating based on ankylosis of the spine may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. This includes consideration of additional loss during flareups or repeated use over time due to pain and other factors under sections 4.40 and 4.45, pursuant to Mitchell, supra. The Court stated that ankylosis is an objective finding and not a diagnosis, and VA's definition is based on limitation of motion. The Court also noted its statement in Lyles v. Shulkin, 29 Vet. App. 107, 118 (2017), that VA's aim is to ensure that the Veteran is properly compensated, but not overcompensated, for the actual level of impairment. Chavis v. McDonough, 34 Vet. App. 1 (2021).

The Court has also clarified that the thoracic and lumbar spine segments of the thoracolumbar spine will be treated as a single unit, even if only one segment is service-connected. Langdon v. McDonough, 1 F.4th 1008 (Fed. Cir. 2021).

Under the alternative IVDS Formula, ratings from 10 to 60 percent are available based on incapacitating episodes, where an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at DC 5243, IVDS Formula and Note.

The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

During the pendency of this appeal, effective prior to March 24, 2015, VA recognized formal and informal claims. A claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). An informal claim was any communication or action indicating intent to apply for one or more benefits, and it must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). VA must look to all communications from a claimant that may be interpreted as applications or claims for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

Also prior to March 24, 2015, former 38 C.F.R. § 3.157 provided that VA would recognize an informal claim for increase after service connection had been allowed for a condition based on information in treatment records under certain circumstances. As relevant to this case, the date of VA outpatient treatment or hospital examination or admission was accepted as the date of receipt of a claim when such reports related to the examination or treatment of a disability for which service-connection had previously been established, or when a claim specifying the benefit sought was received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(a), (b)(1) (2014); see also Massie v. Shinseki, 25 Vet. App. 123 (2011), aff'd, 724 F.3d 1325 (Fed. Cir. 2013) (concerning when treatment records may constitute a claim for an increase).

Effective dates should not be assigned based solely on the date of diagnosis. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead, all relevant facts should be considered to determine the date the increase in disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011); see also 38 C.F.R. § 3.400.

1. Entitlement to an effective date earlier than October 7, 2010, for the award of
, 724 F.3d 1325 (Fed. Cir. 2013) (concerning when treatment records may constitute a claim for an increase).

1. Entitlement to an effective date earlier than October 7, 2010, for the award of an increased rating for the service-connected low back disability

In a June 2011 rating decision, the RO increased the Veteran's disability rating for his low back disability from 10 percent to 20 percent, effective March 8, 2011, the date of receipt of his claim for an increase. In his July 2011 notice of disagreement, the Veteran asserted that an earlier effective date is warranted because his back condition has been "bad" for 42 years since his in-service injury.

In a January 2018 decision, the Board granted an earlier effective date of October 7, 2010, based on a finding of a factually ascertainable increase shown in a VA treatment record on that date, in conjunction with other lay and medical evidence.

As explained below, the Board finds that a factually ascertainable increase was shown as of August 26, 2010, and in the next section below that a 40 percent rating is warranted throughout the appeal period. Thus, an earlier effective date of August 26, 2010, is warranted for the increase to 40 percent, not only to 20 percent.

The Veteran has not asserted that he had a pending claim prior to March 8, 2011, for his back disability. Previously, the RO notified the Veteran in March 1989 of the denial of his September 1988 claim for increase for his back disability, along with his appellate rights. He did not appeal from that determination, and no further communication was received until his March 8, 2011, claim for increase.

VA treatment records dated from 1990 to 2010 were uploaded to the claims file; records dated after July 21, 1992, are considered in VA's constructive possession when created, pursuant to Bell v. Derwinski, 2 Vet. App. 611 (1992). However, there is no medical evidence that may be construed as an informal claim for increase for the back disability. Instead, treatment records after the last denial generally indicate varying levels of pain and resulting functional impairment for many years. There was no indication of increased limitation of motion, or of an abnormal gait or spinal contour due to spasms, to raise a claim for increase.

VA's rating criteria for spinal disabilities effective prior to September 23, 2001, were rated, in part, based on slight, moderate, or severe limitation of motion of the spine; and the criteria did not direct consideration of a separate rating based on neurologic impairment. See 38 C.F.R. § 4.71a, Diagnostic Codes 5285 through 5295 (2001). The General Rating Formula for Diseases and Injuries of the Spine added specific ranges of motion, as well as a note directing consideration of separate ratings for associated neurologic abnormalities, effective August 27, 2003. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237 through 5243 (2003 & 2020).

In this case, at the time of the denial of an increase March 1989, an October 1986 VA treatment record noted intermittent discomfort in the low back since service for which he used motrin, and that he had soreness once a week after working as an electrician. He had good back flexion on examination, although he tended to sway back and was wearing cowboy boots. He was advised to stop wearing cowboy boots. X-rays conducted for status of the lumbar spine noted normal spinal alignment normal, and the impression was signs of old mild compression at the L-1 level. An August 1988 VA treatment record noted stable chronic back pain.

During a January 1989 VA examination, the Veteran reported having dull aching pian in the lumbar spine most of the time, with episodes of severe pain every 2 to 3 months, as opposed to once or twice yearly in the past, plus he was now having some radiating pain down the left leg. He reported losing 40 percent of time in the last 12 months from his self-employment as an electrician due to a lack of physical ability to do the job, described as deteriorating ability to move without low back pain and stiffness that prohibited doing the job fully and completely. The examiner noted that the Veteran had increasing problems with his back and had to cut back significantly on the amount of work he was doing as an electrician. On examination, there was a decrease in the lumbar curve, some tenderness to palpation in the upper lumbar spine, and range of motion showed limitation of forward flexion to 65 degrees, and extension and lateral flexion to 10 degrees. There was a positive straight leg raise for the left side. X-rays showed normal alignment of the spine, normally maintained intervertebral disc spaces, several small osteophytes in the lower lumbar spine of questionable significance, and a transitional vertebra at L5 with partial sacralization on the right. The examiner summarized that there was recurrent lumbosacral strain with some limitation of motion and muscle spasm, with mild sciatic irritation on the left side but no real radiculopathy, and moderate to severe symptoms that limited his job activities.

After the denial, a January 1990 record noted low back pain since the injury in service 20 years ago, and that he took ibuprofen (or NSAIDs) only on days of flareups and it helped with pain. The Veteran would get left-sided sciatica when wearing cowboy boots. He was noted to have stable sacroiliac arthritis.

An August 1991 record noted degenerative arthritis with no nerve root involvement. A June 1992 record noted that the back pain was less troublesome.

A January 1994 record noted that the Veteran's back was bothering him a lot lately, described as low back pain that occasionally had symptoms down the left leg. He reported working as an electrician and that flareups lasted about one month. Examination showed questionable results for bilateral straight leg raise (or potential neurologic symptoms in the lower extremities) and spasms in the left paralumbar area. The assessment noted it sounds like radiculopathy from the back.

A January 1996 record noted full motion of the back without pain or weakness. In June 1996, the Veteran was satisfied with relief from Flexeril for back spasms.

A December 1999 record noted a history of back spasms for which the Veteran had been prescribed cyclobenzaprine and ibuprofen, but that he had not needed a refill for three years because he used the medications only once a month for spasms. Another December 1999 record noted stable back pain.

A May 2001 record noted that the Veteran's lumbago (or low back pain) was stable and controlled on muscle relaxants as needed.

A December 2002 record again noted that the Veteran had stable lumbago with occasional use of Lortab, along with NSAIDs and muscle relaxants as needed.

Records in May 2004, December 2004, and July 2005 noted stable or occasional low back pain for which the Veteran used motrin, Flexeril, and Vicodin as needed. He exercised daily. The December 2004 record further noted that the Veteran requested a prescription of Lortab, stating he had used it in the past when his back was "really hurting," noted as occasional or on average about once a week.

A March 2007 record stated that the Veteran still had recurrent back pain and used Vicodin when needed, and in December 2008 his gait was within normal limits.

VA treatment records in August 2009 and March 2010 (approximately one year prior to submission of his claim for an increase for the low back disability) noted that the Veteran's lumbago was stable on current medications.

After multiple notations of stable back pain with use of medications as summarized above, an August 26, 2010, primary care record noted 40 years of chronic low back pain with an onset of radiation to the left leg approximately 15 years ago. The Veteran reported that his condition had become significantly worse over the past two years. He was tripping frequently, his wife said he was not picking up his left foot, and he had occasional but very severe left side paralumbar muscular spasms that were readily apparent to the Veteran and his wife. His symptoms had progressed to the point where they were having significant effects on quality of life, and they were currently managed with Vicodin, Flexeril, and motrin. The Veteran's gait was within normal limits, but there were some lower extremity neurologic abnormalities, and the assessment was lumbar radiculopathy. For pain management, the provider advised to increase the dosage of NSAID, consider an increase of Vicodin if necessary, ordered preliminary imaging, and recommended a consult with an orthopedic spine clinician to consider an epidural injection.

A September 24, 2010, MRI of the lumbar spine showed multilevel degenerative changes most pronounced at L3-L4 with severe spinal canal stenosis, and findings included alignment within normal limits.

An October 7, 2010, x-ray report of the lumbar spine revealed moderate to severe multilevel degenerative disc disease through the lumbar spine with the worst at level L4-5, which was noted as better evaluated on the recent MRI. The report also noted that range of motion was diminished with flexion and extension maneuvers.

The Veteran then had VA orthopedic surgery consults in November 2010 and March 2011. The provider noted chronic low back pain since the Veteran was in his 20s that was incapacitating at times, along with occasional radicular-type pain down the left leg. The Veteran was somewhat slow to rise from the seated position and had mild to moderate tenderness over the left lower paraspinal musculatures near the insertion of the pelvis. The provider noted chronic low back pain that was likely myofascial and lumbar spinal stenosis, authorized physical therapy, and stated that an epidural injection or surgery was not recommended at that time because the leg symptoms were minimal relative to the Veteran's back.

Subsequent treatment records in March 2011 noted that the Veteran reported back pain on the left side rated at 10+ on a 10-point scale and pain radiating down the legs, he could not lay on either side or his stomach, and it was almost impossible to roll over. He had increased back pain after an initial physical therapy session.

During a May 2011 VA examination, the Veteran reported gradually worsened b ack problems since his injury in service, with current symptoms of constant low back pain and poor sleep despite taking 8 pills of hydrocodone daily. The Veteran felt like he was in a flareup rated 7 to 8 out of 10 for about 80 percent of the time, and during these episodes he had increased pain and decreased range of motion. The Veteran was occasionally in moderate distress during the examination due to pain, and he got up and walked stiffly with an abnormal antalgic gait. Although active forward flexion was measured to 60 degrees, the examiner did not complete repetitive motion testing because the Veteran was only able to bend forward once then seemed to have increased pain and felt that he could go no further.

Along with medical records, the Veteran and several lay witnesses (his wife, son, and three friends) submitted statements dated from November 2010 to March 2011. Overall, these statements indicate that his back disability had caused impairment at home and in his job, giving examples in the 1970s to the 1990s, and had worsened over the years. The Veteran reported even worse pain in his March 8, 2011 claim. Similarly, the medical records reflect a long history of low back pain, which was reported as "really bad" since the 1980s, with occasional left leg symptoms.

In the January 2018 decision, the Board found that the October 7, 2010 x-ray report noting diminished range of motion, in conjunction with the other medical records and lay statements, supported a finding of diminished range of motion on that date. Thus, the Board resolved reasonable doubt in the Veteran's
disability had caused impairment at home and in his job, giving examples in the 1970s to the 1990s, and had worsened over the years. The Veteran reported even worse pain in his March 8, 2011 claim. Similarly, the medical records reflect a long history of low back pain, which was reported as "really bad" since the 1980s, with occasional left leg symptoms.

In the January 2018 decision, the Board found that the October 7, 2010 x-ray report noting diminished range of motion, in conjunction with the other medical records and lay statements, supported a finding of diminished range of motion on that date. Thus, the Board resolved reasonable doubt in the Veteran's favor to find that there was a factually ascertainable increase to 20 percent on October 7, 2010, which was within one year prior to the date the Veteran's claim was received.

Upon further review, the Board finds that a factually ascertainable increase was shown as of August 26, 2010. A treatment record on that date noted increased symptoms that had progressed to the point of significant effects on the Veteran's quality of life, with "very severe" muscle spasms at times that were readily apparent to the Veteran and his wife, and which warranted updated imaging and referral to an orthopedic spine clinician. This record led to the September 2010 MRI and October 7, 2010 x-ray that noted diminished range of motion. Physical therapy in early 2011, which included range of motion exercises, also led to increased problems; and the Veteran was unable to complete repetitive testing in May 2011 due to increased pain. He also reported severe pain causing his wife to "grab him" to prevent him from falling at times in May 2011, which appears consistent with the report of very severe muscle spasms that his wife noticed in August 2010. Accordingly, resolving reasonable doubt in the Veteran's favor, an increase was factually ascertainable as of the August 26, 2010, treatment record, when considering the effects of flareups and repeated use over time. Thus, an effective date of August 26, 2010, is warranted for an increased rating award.

Prior to that date, the Veteran's low back pain was repeatedly noted as stable, and there was no prior pending claim for increase, including based on the Veteran's reports and findings noted in treatment records, for the reasons explained above.

In summary, the evidence is at least in relative equipoise as to an effective date of August 26, 2010, for the award of an increased rating for the back. The appeal is granted to this extent. However, as there is no reasonable doubt to resolve in the Veteran's favor for an even earlier effective date, the appeal is otherwise denied.

2. and 3. A rating in excess of 20 percent for a low back disability prior to October 31, 2016; and a rating in excess of 40 percent since October 31, 2016

The Veteran seeks higher ratings due to frequent back pain, associated lower extremity radiculopathy symptoms, and resulting functional impairment.

The Veteran's spinal diagnoses and resulting impairment progressed during the appeal period, including as shown in x-rays and MRIs in 2010, 2016, and 2017. However, resolving reasonable doubt in his favor, he has met the criteria for a 40 percent rating throughout the appeal period, to include since the date of the informal claim for increase based on the August 26, 2010, treatment record as explained above. A rating in excess of 40 percent for the low back is not warranted.

Specifically, throughout the appeal period, the evidence reflects essentially constant pain in the low back, which is worsened with various activities.

For lay evidence, the Veteran's wife, son, and three friends submitted statements dated from November 2010 to March 2011. The Veteran's wife stated that his back had steadily worsened over the years, and now he could not work without strong medication and someone else doing the lifting. He had been able to continue working since 1999 only due to their son's full-time help. The Veteran's son described past instances where the Veteran's back "went out" while working or it would be very difficult for him to work until his back straightened up. The son had done 90 percent of the lifting and all bending work for the electrician business since 1999, the Veteran's had not been able to work without strong medication since 1999, and his back now gave him trouble every day. The Veteran's son also noted that a doctor told them in 1990 that he had extensive low back disease. Three of the Veteran's friends who had helped him do work in the business and with chores around
. He had been able to continue working since 1999 only due to their son's full-time help. The Veteran's son described past instances where the Veteran's back "went out" while working or it would be very difficult for him to work until his back straightened up. The son had done 90 percent of the lifting and all bending work for the electrician business since 1999, the Veteran's had not been able to work without strong medication since 1999, and his back now gave him trouble every day. The Veteran's son also noted that a doctor told them in 1990 that he had extensive low back disease. Three of the Veteran's friends who had helped him do work in the business and with chores around the home and farm described episodes in the past where he had difficulty bending and his back would "go out" and he was unable to bend over, get into a truck, or sit down after physical activity, such as lifting and loading wood.

In a March 8, 2011, statement with his claim, the Veteran stated that he had been suffering with back pain for 42 years, which he described as severe to debilitating. He asserted that his pain had intensified and his condition was worsening.

In a February 2017 TDIU claim (VA Form 21-8940), the Veteran similarly reported that he was self-employed as an electrician and worked with help from his son, and he had become too disabled to work in the 1980s. He had many episodes of treatment including in the emergency room over the past year, stated that he lost "every day" from illness, and his total income for 2015 was $3,864.

For medical evidence, as noted above, after several years of records noting stable back pain with use of various medications, a VA treatment record on August 26, 2010, the Veteran reported that his condition had become significantly worse over the past two years. He was tripping frequently, his wife said he was not picking up his left foot, and he had occasional but very severe left side paralumbar muscular spasms that were readily apparent to the Veteran and his wife. His symptoms had progressed to where they were having significant effects on his quality of life.

An October 2010 x-ray report noted diminished range of motion with flexion and extension maneuvers. In the November 2010 orthopedic surgery consult, the Veteran reported that his back pain was incapacitating at times. He was somewhat slow to rise from a seated position and had muscle tenderness at the left side.

For VA treatment in March 2011, the Veteran requested a back brace and rated his back pain as 10+ on a 10-point scale. He stated that he could lay on his back, but not on either side or on his stomach, and it was almost impossible to roll over.

During the May 2011 VA examination, the Veteran reported constant low back pain and that it felt like he was in a flareup rated 7 to 8 out of 10 for about 80 percent of the time. During these episodes, he had increased pain and decreased range of motion. At times, he would have a sharp pain and his wife would "grab him" because she was afraid he would "go down." The Veteran also stated that once a day he could not move at all for about 5 minutes and his pain was excruciating.

The examiner measured forward flexion to 60 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 20 degrees each. The Veteran had pain from 0 degrees with all movements. The examiner did not complete repetitive motion testing because the Veteran was only able to bend forward once then had increased pain and felt that he could go no further.

The Veteran reported that his back was his main problem and was what made it difficult for him to work, including lifting activities as an electrician, and it had been "really bad" since the mid-1980s. The Veteran stated that his son does all physical work for the business, he felt unable to do any housework or yardwork, he was able to do self-care but sometimes his wife had to help him wash himself, and he could walk at times up to 100 yards before needing to rest. The Veteran reported slowing down in his business over the last 10 years, but that he hadn't done any physical work for many years. He still went out to evaluate job sites and talked on the phone with his son about what needed to be done, but he was only working a maximum of 10 hours per week even before business became slow. He felt unable to do the usual work of being an electrician. The examiner stated that the Veteran's chronic back pain would preclude him from doing physical labor, as he had
unable to do any housework or yardwork, he was able to do self-care but sometimes his wife had to help him wash himself, and he could walk at times up to 100 yards before needing to rest. The Veteran reported slowing down in his business over the last 10 years, but that he hadn't done any physical work for many years. He still went out to evaluate job sites and talked on the phone with his son about what needed to be done, but he was only working a maximum of 10 hours per week even before business became slow. He felt unable to do the usual work of being an electrician. The examiner stated that the Veteran's chronic back pain would preclude him from doing physical labor, as he had difficulty lifting; and that difficulty standing or sitting for long periods of time also would make it difficult for him to complete full-time sedentary work.

An April 2012 VA treatment record noted worsening of chronic back pain and lower extremity symptoms, and a July 2012 orthopedic spine surgery consult indicated that he was in a wheelchair and able to walk only about 10 feet due to back and leg pain. The provider noted that the Veteran had tried a lot of conservative measures, and injections likely would not much because of the degree of multilevel spinal stenosis. They discussed doing surgery, which would include a laminectomy, but the Veteran was very nervous about surgery. A subsequent July 2012 record noted inadequate relief of back pain on the current regime of ibuprofen, hydrocodone, and tramadol; and that the Veteran had chosen to defer surgical repair. The provider recommended increasing the hydrocodone dosage.

An August 2012 treatment record noted occasional back spasms, and a September 2012 record noted that chronic back pain kept the Veteran from doing much strenuous activity.

In July 2013, a VA provider wrote a letter stating that the Veteran's chronic back pain and medications for the pain may impair his ability to function on a jury.

A February 2015 VA consent form for long-term opioid therapy for pain in the low back and legs identified the Veteran's goals as including reduced pain 3 out of 5 days and the ability to go to the bathroom and back by himself and walk 3 blocks.

Over several weeks from April 2016 to May 2016, the sought VA and private emergency treatment more than five times for constant and severe back pain that radiated down the right leg. He reported an inability to walk more than a short distance or even 10 feet, difficulty standing up straight, inability to drive, and difficulty sleeping due to pain. Emergency records on April 22 and 28, 2016, noted that the Veteran could only walk when "hunched over." Similarly, a VA neurosurgery consult and physical therapy equipment assessment on April 25, 2016, noted that he could stand but remained in a fairly flexed position, or with a forward flexed posture, of about 45 degrees because he had too much low back pain otherwise. The Veteran's symptoms continued and worsened despite taking Vicodin, NSAIDs, oxycodone-acetaminophen (apap or Percocet), a muscle relaxer (cyclobenzaprine), and prednisone. He was given intramuscular medications including dilaudid, Toradol, solumedrol, and morphine sulfate during the episodes of emergency treatment, which reduced his pain only temporarily. The Veteran complained of pain rated 7 to 8 out of 10 for repeat emergency visits, as well as for private pain management in April 2016 and May 2016 that noted poorly controlled pain and included lumbar epidural steroid injections. He reported that his back pain was aggravated by bending, carrying heavy objects, lifting, and driving or standing for long periods. The steroid injections relieved the Veteran's pain and allowed improved physical activities including walking, but only temporarily.

Notably, in the April 2016 neurosurgery consult, the VA provider advised that surgery for central decompression may be of some benefit, but the Veteran's neural foraminal stenosis was so severe that he would probably need more extensive decompression, especially in the neural foramina, which ultimately would result in instability requiring fusion. The extensive nature of his disease may require fusion from L1 down to the sacrum, which is an extraordinarily extensive procedure that should not be taken lightly, with risks including death and permanent pain.

In an October 2016 letter, private provider Dr. M.W. noted that the Veteran had a long history of lumbar spine difficulties with associated symptoms. He opined that the significant changes of the lumbar spine with severe lumbar spinal stenosis, lumbar spondyloarthropathy, and lumbar degenerative disc disease shown on an April 2016 MRI would result in a significant
so severe that he would probably need more extensive decompression, especially in the neural foramina, which ultimately would result in instability requiring fusion. The extensive nature of his disease may require fusion from L1 down to the sacrum, which is an extraordinarily extensive procedure that should not be taken lightly, with risks including death and permanent pain.

During the October 2016 VA examination, the Veteran reported constant low back pain radiating down both legs; he rated his current pain as 6 to 7 out of 10, and reported periods of pain rated 10 out of 10 over the last month. He had ridden in a vehicle from Idaho to Montana for the examination. The examiner was unable to conduct range of motion testing, as the Veteran declined active and passive testing due to constant back pain and concerns that even minimal movement made his pain worse. The examiner noted that pain with forward flexion and extension caused functional loss, and there was evidence of pain with weightbearing. The Veteran reported that he continued to manage his business as an electrician but did not do the jobs, and his son did most of the work; he described many years of working long hours and working in confined places such as basements and crawl spaces.

In December 2016, private pain management records reflect that the Veteran received two transforaminal epidural steroid injection in the lumbar spine, which temporarily reduced his pain from level 6 or 8 out of 10 to 0 out of 10.

A February 2017 VA treatment record noted that the opioids could no longer be prescribed for chronic pain, and he would use motrin and lorazepam and consider alternative options because he would be stopping hydrocodone completely. He was also given a muscle trigger point injection for chronic lower and upper back pain.

During the July 2017 VA examination, the Veteran reported progressive back pain over time, with pain going down the left leg beginning in 1985 and later into both legs. He sought VA treatment when he could no longer work as an electrician because of his back pain, and switched to work that he do while sitting such as wiring for equipment, which he now continued to do. The Veteran reported current symptoms of constant pain in his back and radiating down both legs, with an average pain score of 7 to 8 out of 10. He indicated that he was back to his baseline without medication after the epidural injections in December 2016. In the past, using narcotics of hydrocodone and oxycodone in the past had given good relief with an average pain score of 4 out of 10, but he was currently on ibuprofen and Flexeril with minimal relief. The Veteran described flareups at least twice a week with increased pain to 10 out of 10, during which times he was unable to function. These were sometimes triggered by how he slept, but sometimes they seemed to be triggered by nothing. The Veteran had guarding or muscle spasm of the back that resulted in abnormal gait or abnormal spinal contour due to pain. The examiner measured forward flexion to 25 degrees, extension to 0 degrees, right and left lateral flexion to 0 degrees each, and right and left lateral rotation to 10 degrees each. There was pain with all movements, pain with weightbearing, and tenderness to palpation of the lumbar paraspinal muscles. The examiner stated that the examination was conducted during a flareup, and estimated the same limitations as measured during the examination for additional loss during flareups due to pain and other factors. The Veteran described functional loss of being able to walk less than a block using a cane, needing to use a cane around the house, and having falls related to dragging his feet because it hurt to try to step higher. He was unable to lay on his back and could only lay on either side for a little while; he only felt comfortable sitting in a recliner chair. The examiner noted that the Veteran could walk less than a block with use of cane, could not lift or bend, and was unable to sit comfortably for more than 5 to 10 minutes in a regular chair due to back pain.

Subsequent VA treatment records continued to note antalgic gait and back pain, which the Veteran rated as 7 out of 10 in June 2019, and use of multiple pain medications including opioids. His pain was aggravated or triggered by movement. See, e.g., records in May 2018,
hurt to try to step higher. He was unable to lay on his back and could only lay on either side for a little while; he only felt comfortable sitting in a recliner chair. The examiner noted that the Veteran could walk less than a block with use of cane, could not lift or bend, and was unable to sit comfortably for more than 5 to 10 minutes in a regular chair due to back pain.

In addition to the above notations as to the Veteran's pain and impairment, x records and examinations reflect that he was using a wheelchair at times in July 2012, April 2016, and October 2016 due to severe pain when standing or walking. VA prescribed a rolling walker or rollator for his back in April 2016, and the Veteran used a cane to walk in May 2016 and constantly for support in July 2017.

Throughout the appeal period, the Veteran has taken multiple pain medications for his back pain, including anti-inflammatories or NSAIDs (including ibuprofen or motrin), benzodiazepines (including Lorazepam), muscle relaxants (including Flexeril and cyclobenzaprine), and opiates or narcotics (including Vicodin, hydrocodone, and oxycodone). On August 26, 2010, a VA provider noted that the Veteran's symptoms had progressed to the point where they were having significant effects on his quality of life, despite being managed with Vicodin, Flexeril, and motrin. He was advised to increase the dosage of NSAIDs and consider an increase of Vicodin if necessary. In March 2011, physical therapy made the Veteran's back pain much worse. During the May 2011 VA examination, he reported pain despite taking 8 hydrocodone pills a day. As noted above, a July 2012 VA treatment record noted inadequate relief from the current pain medications, and the hydrocodone dosage was increased. Records in April 2014, June 2014, and October 2014 continued to note use of hydrocodone-apap and lorazepam for chronic and acute on chronic low back pain, as well as muscle spasms and sleep.

VA and private providers also prescribed other treatment modalities, including a TENS unit noted in February 2017, epidural steroid injections from April 2016 to December 2016, and muscle trigger point injections as noted in February 2017 to help reduce back pain and increase function. Those items helped, but the Veteran continued to have pain despite chronic and daily use of multiple medications, and relief of pain from injections lasted only a few weeks, as described in the 2016 and 2017 records. VA treatment records in March 2011 and October 2014 noted that physical therapy had worsened the Veteran's back pain or caused muscle spasms.

The ameliorative effects of these numerous medications and special treatments must be discounted in determining the Veteran's range of motion and functional loss, along with considering the effects of flareups and repeated use over time.

As summarized above, measurements of range of motion throughout the appeal period generally included the ameliorative effects of medications and therapy. Discounting these effects, the lay and medical evidence suggests additional loss during flareups and repeated use over time that approximated 30 degrees or below, or inability to move at times that approximates functional favorable ankylosis. As noted above, the 2016 VA examiner was unable to conduct range of motion testing due to the Veteran's concerns over back pain that was increased with even minimal movement. The 2011 and 2016 examiners did not give an estimate of additional loss of motion during flareups or after repeated use over time, and no explanation was provided for why an opinion could not be given without mere speculation, other than that a flareup or repeated use over time was not observed. Treatment records in 2016 noted that the Veteran remained in a fairly flexed or "hunched" position at 45 degrees due to pain; this suggests functional ankylosis at that position during those episodes. The 2017 examiner measured forward flexion to 25 degrees and other planes of motion to 0 and 10 degrees during an observed flareup; and estimated the same degree of loss during flareups due to pain and other factors. This also approximates functional ankylosis with extension and lateral movements.

Throughout the appeal period, the Veteran reported pain at a level
explanation was provided for why an opinion could not be given without mere speculation, other than that a flareup or repeated use over time was not observed. Treatment records in 2016 noted that the Veteran remained in a fairly flexed or "hunched" position at 45 degrees due to pain; this suggests functional ankylosis at that position during those episodes. The 2017 examiner measured forward flexion to 25 degrees and other planes of motion to 0 and 10 degrees during an observed flareup; and estimated the same degree of loss during flareups due to pain and other factors. This also approximates functional ankylosis with extension and lateral movements.

Throughout the appeal period, the Veteran reported pain at a level of 7 to 8 or higher out of 10 when not taking medications, with flareups at a level 10 and similar resulting impairment. As summarized above, medical records reflect decreased pain, improved posture or spinal curvature, and increased range of motion and other functional abilities at times after treatment with additional pain medications and steroid or trigger point injections. However, his symptoms and functional ability were improved only temporarily, and the decreases were not of sufficient length to warrant a lower staged rating. Instead, the Veteran's additional loss during flareups and after repeated use was relatively consistent.

Accordingly, resolving reasonable doubt in the Veteran's favor, the lay and medical evidence demonstrate forward flexion limited to 30 degrees or less at times, as well as functional favorable ankylosis at times, since August 26, 2010. This warrants a 40 percent rating. 38 C.F.R. § 4.71a, DCs 5237 and 5243, General Rating Formula.

However, the notations as to functional ankylosis do not more nearly approximate unfavorable ankylosis as required for a 50 percent or higher rating, as the Veteran did not have the additional factors or impairment required by VA for unfavorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5), supra.

There has been no objective associated neurologic impairment other than lower extremity radiculopathy, to include bowel or bladder impairment. The Veteran's right lower extremity radiculopathy is discussed below. However, left lower extremity radiculopathy may not be discussed due to the Veteran's choice to "opt in" to the AMA appeal system for that issue, as explained above. The Veteran consistently denied bowel or bladder impairment associated with his back disability, and examiners also found no such impairment. A VA treatment record in April 2016 noted that the Veteran had frequent urination with a history of kidney stones; thus, it was not attributed to his back disability or neurologic impairment.

Under the alternative IVDS Formula, a rating must be based on incapacitating episodes. However, the 2017 examiner who noted IVDS found no such episodes. Similarly, although the Veteran reported being unable to move at times due to pain, there are no lay reports or notations in treatment records of prescribed bed rest for the Veteran's back disability to support an alternative rating on this basis.

In summary, reasonable doubt has been resolved in the Veteran's favor to award a higher rating for a portion of the appeal period; the appeal is granted to this extent. The manifestations of his back disability were relatively consistent throughout the period on appeal, and any increases in severity did not more nearly approximate the criteria for a higher or separate rating at any point. As the evidence is not in relative equipoise in this regard, there is no other reasonable doubt to be resolved to be resolved in the Veteran's favor, and the appeal is otherwise denied.

4. , 5., 6., and 7. Right lower extremity radiculopathy ratings, to include a compensable rating prior to October 31, 2016; a rating in excess of 10 percent from October 31, 2016, to July 27, 2017; and a rating in excess of 20 percent since July 28, 2017, for sciatic radiculopathy; and a separate rating for right lower extremity femoral nerve radiculopathy

The Veteran has been assigned a staged rating for right lower extremity of 10 percent effective from October 31, 2016, to July 27, 2017, and 20 percent effective since July 28, 2017, under DC 8520 for sciatic nerve radiculopathy.

As discussed above in the introduction, although the Veteran complained of left lower extremity symptoms beginning in 1985, and had noted left lower extremity neurologic abnormalities during the appeal period, service connection was denied for this condition, and the Veteran did not appeal that determination.

As explained below, resolving reasonable doubt in the Veteran
ulopathy; and a separate rating for right lower extremity femoral nerve radiculopathy

As explained below, resolving reasonable doubt in the Veteran's favor, the right lower extremity warrants a 10 percent rating for mild sciatic nerve radiculopathy, effective April 9, 2012, to April 18, 2016; a 20 percent rating for moderate sciatic nerve radiculopathy, effective April 19, 2016, to July 27, 2017; and a 40 percent rating for moderately severe sciatic nerve radiculopathy, effective since July 28, 2017. In addition, the Veteran is entitled to a separate 10 percent rating for mild femoral neve radiculopathy, effective since April 19, 2016.

Under DC 8520, complete paralysis of the sciatic nerve is assigned an 80 percent rating where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. Ratings of 10, 20, 40, or 60 percent are assigned for mild, moderate, moderately severe, or severe incomplete paralysis, respectively. 38 C.F.R. § 4.124a.

Under DC 8526, complete paralysis of the femoral (anterior crural) nerve is assigned a 40 percent rating where there is paralysis of the quadriceps extensor muscles. Ratings of 10, 20, or 30 percent are assigned for mild, moderate, or severe incomplete paralysis, respectively. Neuritis of this nerve is rated using the same criteria under DC 8626 (as assigned in this case). Id. This description contemplates symptoms in the anterior or front of the thigh where the quadriceps are located.

The terms "mild," "moderate," and "severe" are not defined in the diagnostic codes. However, the term "incomplete paralysis" for peripheral nerve injuries indicates a degree of lost or impaired function substantially less that the type pictured for complete paralysis. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, introduction prior to DC 8510.

Peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, will be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating for neuritis not characterized by these organic changes will be moderate incomplete paralysis, or moderately severe incomplete paralysis if there is sciatic nerve involvement. 38 C.F.R. § 4.123.

Peripheral neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, will be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124.

In this case, VA treatment records in November 2010 and March 2011 found normal strength and sensation in the lower extremities, and the Veteran complained only of the left leg. During a May 2011 VA examination, the Veteran complained of pain radiating down both legs at times, but he denied numbness or weakness in either leg. Testing for strength and sensation of the right side were normal, and straight leg raise testing was negative. No radiculopathy diagnosis was given.

The first diagnosis and symptoms of right lower extremity radiculopathy were in an April 9, 2012, VA treatment record, which noted interim worsening of low back pain and complaints of paresthesias or numbness in both lower extremities. A July 2012 orthopedic spine surgery consult then stated that the Veteran had bilateral leg symptoms of neurogenic claudication. Testing showed slightly decreased strength of 4+ out of 5, but intact sensation and reflexes bilaterally. A subsequent July 2012 record started a trial of amitriptyline for paresthesias.

A February 2015 VA treatment record noted spinal stenosis with neurogenic claudication and that prior trials of gabapentin and amitri
extremity radiculopathy were in an April 9, 2012, VA treatment record, which noted interim worsening of low back pain and complaints of paresthesias or numbness in both lower extremities. A July 2012 orthopedic spine surgery consult then stated that the Veteran had bilateral leg symptoms of neurogenic claudication. Testing showed slightly decreased strength of 4+ out of 5, but intact sensation and reflexes bilaterally. A subsequent July 2012 record started a trial of amitriptyline for paresthesias.

A February 2015 VA treatment record noted spinal stenosis with neurogenic claudication and that prior trials of gabapentin and amitriptyline and failed.

As summarized below, a neurosurgery consult in April 2016 specified that the Veteran's posterior right leg symptoms involved the sciatic nerve. There was no suggestion of symptoms in the anterior right leg prior to April 19, 2016. Thus, resolving reasonable doubt in the Veteran's, the above records warrant a compensable rating for sciatic nerve impairment, effective since April 9, 2012. Because the pain was not constant, strength was only slightly decreased, and testing for sensation or numbness and reflexes was normal, the Board finds no more than mild impairment, which warrants a 10 percent rating under DC 8520.

Resolving reasonable doubt in the Veteran's favor, records beginning April 19, 2016, show an increased level of symptoms and involvement of both the sciatic and femoral nerves, warranting a higher sciatic rating and separate femoral rating.

From April 19, 2016, to early May 2016, the Veteran sought VA and private emergency treatment multiple times. He was provided two VA neurosurgery consults and also had private pain management treatment during this time. The Veteran complained of severe pain in the low back and right lower extremity, including into the right hip, groin, and down the leg. He described constant pain radiating down the anterior and posterior of the right leg down to the knee, as well as numbness and severe paresthesias or tingling on the right side. Testing on several dates showed symmetric reflexes (also noted as 2+ or 2 out of 4, which is normal); good or excellent motor strength (also noted as 5 out 5, but with severe pain in one record, and strength was functional for ambulation); and numbness of 80 percent compared to the upper extremities. Straight leg raise test was positive on the right side. The impressions included lumbar radiculopathy or sciatica.

An April 25, 2016, neurosurgery consult noted pain going down the anterior and posterior right leg to the knee. The provider stated that an MRI showed diffuse lumbar spondylosis with severe lumbar spinal stenosis from L2-L5 and severe neural foraminal stenosis at L2-S1. The Veteran exhibited signs of claudication and severe spinal stenosis, neural foraminal stenosis with associated radicular pain in the right groin (which is in the front or anterior of the body), which the provider stated was more consistent with stenosis predominantly at the L2-L3 area; and posterior leg pain, which the provider stated was more consistent with spondylosis and stenosis at the L4-L5-S1 areas, that was contributing to sciatic-type pain.

The October 2016 VA examination noted multilevel degenerative spondylosis lumbar with severe stenosis and bilateral lower extremity radiculopathy, and the Veteran complained of pain radiating down both legs into his feet. Strength was 5 out of 5, reflexes were normal (2+) at the knee but decreased (1+) at the ankle, sensation was normal, and straight leg raise test was negative. There were signs or symptoms of radiculopathy of mild intermittent pain usually dull, mild paresthesias and/or dysesthesias, and mild numbness. The examiner stated that the sciatic nerve was involved from L4 to S3, with overall severity of mild incomplete paralysis.

The July 2017 VA examination noted complaints chronic low back pain with pain going down the left leg in 1985 and eventually in both legs. Strength was slightly decreased to 4 out of 5 at all levels, reflexes were absent (0) at right knee and normal (2+) at the ankle, sensation was decreased at all levels, and straight leg raise was positive. The examiner noted radiculopathy in the right lower extremity with severe constant pain and numbness, and moderate paresthesias and/or dysesthesias. This examiner stated that both the femoral nerve (L2
examiner stated that the sciatic nerve was involved from L4 to S3, with overall severity of mild incomplete paralysis.

The July 2017 VA examination noted complaints chronic low back pain with pain going down the left leg in 1985 and eventually in both legs. Strength was slightly decreased to 4 out of 5 at all levels, reflexes were absent (0) at right knee and normal (2+) at the ankle, sensation was decreased at all levels, and straight leg raise was positive. The examiner noted radiculopathy in the right lower extremity with severe constant pain and numbness, and moderate paresthesias and/or dysesthesias. This examiner stated that both the femoral nerve (L2/L3/L4) and sciatic nerve (L4-S3) were involved; and overall, the severity was moderate.

Subsequent VA treatment records continued to reflect pain and use of medications.

The rating criteria under DC 8520 reflect that the sciatic nerve affects areas down the leg, including the knee down to the foot, whereas under DC 8526 the femoral nerve affects the anterior or front of the thigh and quadriceps muscle. Although the April 2016 neurosurgery consult and October 2016 VA examination only mentioned sciatica or the sciatic nerve, the April 2016 neurosurgery consult distinguished between symptoms in the anterior leg or groin that were attributed to stenosis at the L2-L3 area, and symptoms contributing to sciatic-type pain that were attributed to stenosis at the L4-S1 areas. This is generally consistent with the distinctions noted by the July 2017 VA examination that identified involvement of the femoral nerve for L2-L4 and the sciatic nerve for L4-S3. Thus, the Board resolves reasonable doubt in the Veteran's favor to find both femoral and sciatic nerve involvement since the April 19, 2016, record with increased symptoms.

Additionally, the evidence supports a finding of no more than moderate sciatic nerve impairment, effective since April 19, 2016, which warrants a 20 percent rating; and moderately severe sciatic impairment since July 28, 2017, which warrants a 40 percent rating. See 38 C.F.R. § 4.124a, DC 8520.

The Veteran had constant pain that was severe from April 2016 to May 2016, which had reduced to mild intermittent pain by October 2016. There were complaints of numbness and objectively decreased sensation or numbness in April 2016, and mild numbness but normal sensation testing in October 2016. Paresthesias and/or dysesthesias or tingling were noted as severe in April 2016 but only mild in October 2016. Strength was normal in April 2016 despite severe pain at times, and normal in October 2016. Reflexes were normal in April 2016, and normal at the knee but decreased at the ankle in October 2016. The findings of decreased sensation and reflexes at times, in addition to pain and paresthesias or dysesthesias, support an increase to the moderate severity level. However, the Veteran's strength remained normal, and there were no absent reflexes, despite pain. Thus, the Board finds that this does not rise to the level of moderately severe.

As of the July 28, 2017, VA examination, the Veteran complained of severe and constant pain, severe numbness with decreased (but not absent) sensation, moderate paresthesias or dysesthesias. In contrast to the records in 2016, the July 2017 VA examination measured strength as slightly decreased to 4 out of 5, and reflexes were normal at the ankle but absent at the knee. The findings of decreased strength and, particularly, absent sensation, suggest a higher level of severity. Thus, the Board resolves reasonable doubt in the Veteran's favor to find that sciatic nerve impairment was moderately severe to warrant a 40 percent rating under DC 8520.

Since 2016, the Veteran's right lower extremity symptoms were primarily in the posterior of the leg, and the medical evidence reflects that those were related to the sciatic nerve. In contrast, the Veteran had less symptoms in the anterior of the leg that were attributed to the femoral nerve, primarily pain in the groin or leg at times. Thus, only a 10 percent rating for mild impairment is warranted under DC 8526.

8. Entitlement to a TDIU on a schedular basis

The Veteran seeks a TDIU based on his back disability, as noted in February 2017 and November 2018 formal claims (VA Form 21-8940) and in multiple statements for his appeal describing worsening effects from his back on physical duties
Veteran's right lower extremity symptoms were primarily in the posterior of the leg, and the medical evidence reflects that those were related to the sciatic nerve. In contrast, the Veteran had less symptoms in the anterior of the leg that were attributed to the femoral nerve, primarily pain in the groin or leg at times. Thus, only a 10 percent rating for mild impairment is warranted under DC 8526.

8. Entitlement to a TDIU on a schedular basis

As explained below, a schedular TDIU is granted, effective since April 19, 2016, but consideration for the prior period since August 26, 2010, must be remanded.

A TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, a schedular percentage threshold must be met. If there is only one service-connected disability, it shall be ratable at 60 percent or more; 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. 38 C.F.R. § 4.16(a). However, VA may still grant TDIU on an extraschedular basis if this schedular percentage threshold is not met if the evidence shows unemployability due to service-connected disabilities, after referral to the Director of Compensation Services for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b).

In determining unemployability, there is an economic component, which includes whether any employment was marginal, and a non-economic component, which includes mental and physical capacity based on occupational history, education, skills, and training. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component means "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. at 73. Consideration should be given to prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Gleicher v. Derwinski, 2 Vet. App. 26 (1991); Pederson v. McDonald, 27 Vet. App. 276 (2015). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). If the Veteran is capable only of marginal employment, then he or she is incapable of securing or following a substantially gainful occupation. Cantrell v. Shulkin, 28 Vet. App. 382, 388 (2017).

The ultimate question of whether a Veteran is capable of substantially gainful employment is a factual one to be determined by the VA adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Although medical examiners may give a medical opinion on the ability to perform certain tasks, they are not experts on employment in general. Moore v. Nicholson, 21 Vet. App. 211, 219-20 (2007). Medical examiners are responsible for providing a full description of the effects of disability, while the VA adjudicator is responsible for interpreting reports in light of the whole recorded history and reconciling the various reports into a consistent picture to accurately assess the disability. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). VA is not required to provide a vocational assessment for a TDIU claim, and it is within VA's discretion to determine whether a vocational assessment is required under the facts. Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011).

All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

In this case, the Veteran has multiple service-connected disabilities. Considering the Board's awards of increased
recorded history and reconciling the various reports into a consistent picture to accurately assess the disability. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). VA is not required to provide a vocational assessment for a TDIU claim, and it is within VA's discretion to determine whether a vocational assessment is required under the facts. Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011).

All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

In this case, the Veteran has multiple service-connected disabilities. Considering the Board's awards of increased ratings in this decision, the Veteran has been service-connected for a low back disability rated at 40 percent, effective since August 26, 2010. He has a separate rating for right lower extremity sciatic nerve radiculopathy rated 10 percent, effective since April 19, 2012, rated 20 percent, effective since April 19, 2016, and rated 40 percent, effective since July 28, 2017. He also has a separate rating for right lower extremity femoral nerve radiculopathy rated 10 percent, effective since April 19, 2016. The Veteran has a service-connected neck (cervical spine) disability, rated 10 percent effective since March 8, 2011, and 20 percent effective since February 11, 2019. A left rib disability has been rated as noncompensable (0 percent) throughout the appeal period.

Under 38 C.F.R. § 4.16(a), the ratings for the lumbar and cervical spine and associated radiculopathies, as well as the left rib, are all considered one disability for TDIU schedular threshold percentage purposes. They involve the same body system (spine) or arise from the same etiology (lumbar spine and associated radiculopathies, or left rib and lumbar spine from the same in-service injury).

Thus, effective since March 8, 2011, the Veteran's lumbar spine rating of 40 percent and cervical spine rating of 10 percent combine to 46 percent, which rounds up to 50 percent, under 38 C.F.R. § 4.25. Effective since April 19, 2012, the addition of a right lower extremity sciatic nerve radiculopathy rating of 10 percent brings the combined rating to 51 percent, which rounds down to 50 percent. Id. Effective since April 19, 2016, the lumbar spine rating of 40 percent, increased right lower extremity sciatic nerve rating of 20 percent, separate femoral nerve rating of 10 percent, and cervical spine rating of 10 percent combine to 61 percent, which rounds down to 60 percent. Id. As the left rib disability is considered a single disability with the other disabilities for TDIU threshold purposes, the Veteran meets the threshold with a single disability of 60 percent from this date.

As summarized above in the analysis for the low back and right lower extremity radiculopathy ratings, the lay and medical evidence reflect an inability to perform physical work due primarily to the Veteran's low back disability, as well as associated symptoms in his right lower extremity. Although he has remained employed, the Veteran has performed only sedentary or non-physical work for his self-employed electrician business since approximately 1999. His son has completed all physical work since that time, and the Veteran has completed work that involved sitting (such as wiring) or talking with clients on evaluations or on the phone with his son for job instructions. However, the Veteran reported in 2011 that he had only worked approximately 10 hours per week at maximum prior to the business becoming slow recently, and he reported in 2017 that his income was less than $4,000 in 2015. In addition to an ability to complete physical work, the 2011 VA examiner stated that difficulty standing or sitting for long periods of time would make it difficult for the Veteran to complete full-time sedentary work.

Thus, resolving reasonable doubt in the Veteran's favor, he had only marginal employment throughout the appeal period, based on part-time work with a level of income below the poverty level and on a facts-found protected work environment. Accordingly, he has been unable to obtain or maintain substantially gainful employment consistent with his educational and occupational history due to service-connected disabilities since at least August 26, 2010. A schedular TDIU is warranted from the date he also met the schedular threshold criteria on April 19, 2016; and the appeal is granted to this extent. The prior
VA examiner stated that difficulty standing or sitting for long periods of time would make it difficult for the Veteran to complete full-time sedentary work.

REASONS FOR REMAND

9. Entitlement to a TDIU on an extraschedular basis prior to April 19, 2016

As explained above, resolving reasonable doubt in the Veteran's favor, he had only marginal employment throughout the appeal period, based on part-time work with a level of income below the poverty level and on a facts-found protected work environment. Accordingly, he has been unable to obtain or maintain substantially gainful employment consistent with his educational and occupational history due to service-connected disabilities since at least August 26, 2010. However, because the Veteran does not meet the percentage threshold for a TDIU prior to April 19, 2016, the Board must remand the matter for referral to VA's Director of Compensation for an extraschedular opinion, pursuant to 38 C.F.R. § 4.16(b).

The matter is remanded for the following action:

Refer the claim for a TDIU to VA's Director of Compensation Service for extraschedular consideration for the period from August 26, 2010, to April 18, 2016. The Director should consider the Board's findings as to the Veteran's unemployability due to his service-connected low back and associated right lower extremity sciatic and femoral nerve radiculopathy disabilities.

Claire Davidoski

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Wheatley

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.

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