DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

S. BUSH · 2026 · Case ID: 26002356

GRANTED

Summary

The veteran, who served in the United States Navy from October 1975 to October 1979, appeals the denial of increased ratings for his service-connected back disability and erectile dysfunction (ED), and the denial of entitlement to Total Disability based on Individual Unemployability (TDIU). The Board granted entitlement to an initial 40 percent rating for his back disability from April 14, 2011, finding that his condition approximated the criteria for that rating throughout the appeal period, considering his reports of pain, functional limitations, and medication use. The Board also granted a separate 10 percent rating for right lower extremity (RLE) radiculopathy from April 14, 2011, acknowledging that while VA did not explicitly adjudicate this, the Veteran's reported RLE symptoms associated with his back disability fell within the scope of the claim. For ED, the Board granted a 20 percent rating from April 14, 2011, finding it analogous to loss of erectile power based on the Veteran's reports of difficulties since his late forties, affording him the benefit of the doubt. Finally, the Board granted TDIU from April 14, 2011, finding that the Veteran's service-connected disabilities, particularly his back condition, rendered him unable to secure or maintain substantially gainful employment, supported by his employment history, vocational assessment, and consistent testimony regarding functional limitations.

Rationale

Forward flexion limited to 30 degrees during flare-ups; Pain causing functional loss; Benefit of the doubt afforded for rating determination

Service Branch

NAVY

Special Benefit

TDIU

Docket No.

13-05 830

Full Decision Text

Citation Nr: 26002356
Decision Date: 02/19/26 Archive Date: 02/19/26

DOCKET NO. 13-05 830
DATE: February 19, 2026

ORDER

Entitlement to an initial 40 percent rating, but no higher, for degenerative arthritis of the thoracolumbar spine (back disability) is granted from April 14, 2011.

Entitlement to a separate 10 percent rating, but no higher, for right lower extremity (RLE) radiculopathy is granted from April 14, 2011.

Entitlement to an initial 20 percent rating, but no higher, for erectile dysfunction (ED) is granted from April 14, 2011.

Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from April 14, 2011.

FINDINGS OF FACT

1. The Veteran's back disability has more nearly approximated forward flexion to 30 degrees throughout the appeal period, without unfavorable ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS) at any point.

2. The Veteran's RLE radiculopathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve throughout the appeal period.

3. The Veteran's ED has been analogous to penile deformity with loss of erectile power throughout the appeal period.

4. The Veteran's service-connected back disability has rendered him unable to secure or follow a substantially gainful occupation throughout the appeal period.

CONCLUSIONS OF LAW

1. The criteria for an initial 40 percent rating, but no higher, for a back disability are met from April 14, 2011. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242.

2. The criteria for a separate 10 percent rating, but no higher, for RLE radiculopathy are met from April 14, 2011. 38 U.S.C §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520.

3. The criteria for an initial 20 percent rating, but no higher, for ED is granted from April 14, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115b, DC 7522.

4. The criteria for a TDIU are met from April 14, 2011. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?3.340, 3.341, 4.3, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from October 1975 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision from the Department of Veterans Affairs (VA) Agency of Jurisdiction (AOJ).

The Board remanded the appeal for outstanding VA treatment records in July 2014, and to afford the Veteran a hearing in March 2016. In July 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ). The Board remanded the appeal for further development in March 2017, October 2017, and June 2018. The Veteran testified at a second hearing before the undersigned VLJ in June 2022. The Board remanded the appeal for further development in May 2023. There has been substantial compliance with the remand directives, as the AOJ provided the Veteran and his representative with the qualifications of the requested October 2018 VA examiner, scheduled VA examinations in September 2023 and August 2024, and referred the issue of an extraschedular TDIU to VA's Director of Compensation Service. The Veteran testified at third hearing before the undersigned VLJ in June 2025.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38?C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38
has been substantial compliance with the remand directives, as the AOJ provided the Veteran and his representative with the qualifications of the requested October 2018 VA examiner, scheduled VA examinations in September 2023 and August 2024, and referred the issue of an extraschedular TDIU to VA's Director of Compensation Service. The Veteran testified at third hearing before the undersigned VLJ in June 2025.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38?C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38?U.S.C. §?1155. The disability must be viewed in relation to its history. 38?C.F.R. §?4.1. If two disability ratings 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38?C.F.R. §?4.3.

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).

1. Entitlement to an initial 40 percent rating, but no higher, for a back disability is granted from April 14, 2011.

The Veteran's back disability is rated at 10 percent from April 4, 2011 to December 5, 2012, at 20 percent from December 5, 2012, and at 40 percent from August 27, 2024 under DC 5242. The appeal period is from April 4, 2011, the effective date of service connection.

DC 5242 evaluates degenerative arthritis and is rated according to the General Rating Formula for Diseases and Injuries of the Spine. Pursuant to that formula, as relevant here, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the 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, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

The Board notes that although the Veteran presented for a VA examination in November 2011, that examination is not compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Thus, the November 2011 examination report will not be utilized to evaluate the Veteran's back disability based on range of motion. The Board emphasizes that this does not prejudice the Veteran, as the range of motion findings are less favorable than those documented in subsequent VA examinations.

Private treatment records from the Social Security Administration (SSA) reflect that
. § 4.71a.

Private treatment records from the Social Security Administration (SSA) reflect that the Veteran received treatment from a private provider for chronic back pain. Records dated June 2011, August 2011, September 2011, December 2011, and March 2012 show that he rated his pain between 3 to 5 out of 10 with medication, and much higher without medication. He was prescribed hydrocodone, Relafen, and Neurontin for his back disability and it was noted that he could not function without his medication.

A December 2012 SSA examination report reflects the Veteran's report of being able to stand for approximately 1 hour, walk 100 feet, and sit 10 minutes without pain. His current medications included nabumetone, gabapentin, Zanaflex, and hydrocodone. He exhibited forward flexion to 45 degrees.

VA treatment records dated in May and July 2014 show that the Veteran followed a private pain management doctor and that his chronic back pain was stable on pain medications. In September 2015, the Veteran reported that he stopped going to pain management for his back because he could no longer afford it. He stated that he had come off all previous pain medications and had been doing alright without them. However, he noted that he still got sore for a few days when he did anything physical and was advised to try over the counter medications as needed to help with intermittent pain.

During the July 2016 Board hearing, the Veteran reported worsening back pain and indicated that he had to rest in bed a few hours every time the weather changed and after any type of activity. He denied taking any medication. A September 2016 VA treatment record shows that the Veteran sought treatment for back pain, rated 8/10, after he exacerbated it by riding on his motorcycle. He stated the pain had been well controlled with ibuprofen and noted his pain improvement with laying down and decreased activity. He was prescribed cyclobenzaprine for exacerbations and one pill of Toradol for his current pain.

At the February 2018 VA examination, the Veteran reported back pain and flare-ups that worsened with prolonged standing and walking and weather changes. He denied using any medications to treat his back. Forward flexion was to 40 degrees on active motion with evidence of pain causing functional loss, and there was no additional loss of function or range of motion upon repetition. The examiner stated that passive motion was not performed because it was not feasible to do so in a safe and reasonable manner. No evidence of localized tenderness, pain on palpation, guarding, muscle spasm, ankylosis, or use of an assistive device was noted. Upon review of this examination, an October 2018 VA examiner indicated that the Veteran was unable to unable to sit, stand or walk prolonged periods and unable to bend, lift, or carry heavy objects due to pain, weakened movement, and excess fatigability on use during flare-ups. She determined that such symptoms would additionally limit forward flexion to 35 degrees during flare-ups.

VA treatment records show a prescription for ibuprofen was renewed for the Veteran's back pain in November 2018 and note that he was ibuprofen for back pain in October 2019.

At the June 2022 Board hearing, the Veteran reported worsening back pain, especially during weather changes, and indicated that he could not get out of bed some mornings as a result. He endorsed daily flare-ups and difficulty with standing, sitting, and bending and indicated that he took pain medication.

The September 2023 VA examination report shows the Veteran endorsed constant, achy, and throbbing lower back pain that he treated with naproxen. He denied flare-ups. Forward flexion was to 75 degrees on active and passive motion, with evidence of pain causing functional loss, specifically increased pain with bending. There was no additional loss of function or range of motion upon repetition. The examiner indicated that pain, fatigability, weakness, lack of endurance, or incoordination would not significantly limit functional ability after repeated use over time.
he could not get out of bed some mornings as a result. He endorsed daily flare-ups and difficulty with standing, sitting, and bending and indicated that he took pain medication.

The September 2023 VA examination report shows the Veteran endorsed constant, achy, and throbbing lower back pain that he treated with naproxen. He denied flare-ups. Forward flexion was to 75 degrees on active and passive motion, with evidence of pain causing functional loss, specifically increased pain with bending. There was no additional loss of function or range of motion upon repetition. The examiner indicated that pain, fatigability, weakness, lack of endurance, or incoordination would not significantly limit functional ability after repeated use over time. No evidence of crepitus, localized tenderness, pain on palpation, guarding, muscle spasm, ankylosis, or use of an assistive device was noted.

On VA examination in August 2024, the Veteran reported back pain and stiffness and the use of naproxen. He described moderate flare-ups occurring weekly, lasting a day or two, and alleviated by rest and naproxen. Forward flexion was to 45 degrees on active motion, with evidence of pain and pain with weightbearing and non-weightbearing causing functional loss, specifically difficulty bending, lifting and moving heavy objects, and prolonged walking, sitting, and standing. There was no additional loss of function or range of motion upon repetition. Passive motion was not performed, as the examiner explained that trying to passively move the spine could lead to further injury to ligaments and exiting nerves. The examiner indicated that pain would additionally limit forward flexion to 35 degrees after repeated use over time and to 25 degrees during flare-ups. Additional contributing factors of interference with sitting and standing and disturbance of locomotion were noted, but there was no evidence of crepitus, localized tenderness, pain on palpitation, ankylosis, or use of an assistive device.

At the June 2025 Board hearing, the Veteran endorsed constant back pain that he treated with Naprosyn. He reported difficulty with repetitive bending and heavy lifting and indicated that going to the store caused his back to flare up and required him to rest in bed for a couple days. He stated that he was on prescription medications for a while in 2011, which helped with pain, but stopped due to their potential side effects and because the provider stopped prescribing them. He indicated taking over the counter pain medication but noted the effects wore off in an hour or two.

The record reflects that the Veteran regularly took medications to manage his back pain during much of the appeal period and needed them in order to function, particularly before he stopped taking them in September 2015. However, the evidence indicates he was unable to continue seeing his private provider, who prescribed the medications, due to finances and not because his back disability had improved. A year later, VA prescribed medication for his back pain in September 2016 and again in November 2018 and the Veteran subsequently reported the use of pain medication at examinations and hearings. While the evidence is consistent with the ratings currently assigned based on range of motion, it does not indicate whether the Veteran's forward flexion would be further limited without the ameliorative effects of medication, apart from when the Veteran denied using medications at the February 2018 VA examination. Presumably, his symptoms would have been worse if he had not been treating them with medication. When considering his competent and credible reports of limited lumbar spine motion, pain, and functional limitations during flare-ups throughout the appeal period and resolving reasonable doubt in his favor, the Board finds that the Veteran's back disability has more nearly approximated a 40 percent rating from April 14, 2011.

A rating in excess of 40 percent is not warranted at any point during the appeal period, as the evidence does not indicate unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, even when discounting the ameliorative effects of medication. In a November 2016 private opinion, Dr. G indicated that the Veteran exceeded the criteria for a 60 percent under the Formula for Rating IVDS (IVDS Formula) based on incapacitating episodes. However, the evidence is negative for any incapacitating episodes as contemplated within the applicable rating criteria, let alone 6 weeks over a period of 12 months of such episodes, to allow for assignment of a 60 percent rating. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Despite the Veteran's reports of incapacitating episodes that made it necessary for him to stay in bed during flare-ups, the record does not demonstrate that his back disability required bed rest prescribed by a physician, as mandated by the rating criteria noted
. G indicated that the Veteran exceeded the criteria for a 60 percent under the Formula for Rating IVDS (IVDS Formula) based on incapacitating episodes. However, the evidence is negative for any incapacitating episodes as contemplated within the applicable rating criteria, let alone 6 weeks over a period of 12 months of such episodes, to allow for assignment of a 60 percent rating. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Despite the Veteran's reports of incapacitating episodes that made it necessary for him to stay in bed during flare-ups, the record does not demonstrate that his back disability required bed rest prescribed by a physician, as mandated by the rating criteria noted above.

Regarding separate neurological complications, the Veteran has been separately service connected for left lower extremity radiculopathy but did not perfect his appeal of the August 2019 statement of the case (SOC) by submitting a timely VA Form 9 within 60 days. Although a VA Form 9 was later received in February 2020, it is not timely, and while the Veteran's attorney argued that it should be still accepted because a copy of the SOC had never been sent to her office and she had learned of the SOC while reviewing the Veteran's file, a statement of nonreceipt standing alone is not enough to rebut the presumption of administrative regularity. See Romero v. Tran, 33 Vet. App. 252 (2021). Thus, this disability is not before the Board. De Hart v. McDonough, 37 Vet. App. 371 (2024). Furthermore, the evidence does not show any other neurological abnormalities associated with the Veteran's back disability, besides the RLE and ED further discussed below.

At the Board hearings, the Veteran described experiencing disrupted sleep due to back pain. The Board sympathizes with the Veteran's difficulty sleeping but finds that there is no evidence demonstrating that the pain causing the disrupted sleep causes functional impairment and that it is otherwise contemplated under section 38 C.F.R. § 4.59 and consequently the assigned disability rating. As such, the award of separate compensation based on difficulty sleeping is not warranted.

Accordingly, for reasons and bases outlined above, a 40 percent rating, but no higher, is warranted for the Veteran's back disability over the appeal period.

2. Entitlement to a separate 10 percent rating, but no higher, for RLE radiculopathy is granted from April 14, 2011.

In determining that a separate rating is warranted for RLE radiculopathy due to the Veteran's service-connected back disability, the Board acknowledges that the AOJ did not specifically adjudicate entitlement to this benefit. However, VA's decision on an issue within a claim implies that VA has determined that evidence of record does not support entitlement for any other issues that are reasonably within the scope of the issues addressed in that decision. See 38 C.F.R. § 3.155 (d)(2). As the Veteran has reported neurological RLE symptoms associated with his back disability, the Board finds that such symptoms are within the scope of the increased rating claim for a back disability. The period on appeal is the same as that on appeal for the Veteran's back disability.

DC 8520 evaluates paralysis of the sciatic nerve, and provides a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, a 60 percent rating for severe incomplete paralysis with marked muscle atrophy, and a maximum 80 percent rating for complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.

The words "mild," "moderate," "moderately severe," and "severe" as used in the various DCs are not defined in the Rating Schedule. Regulations provide that the 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
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).?

The Board finds that mild incomplete paralysis exists where there are subjective symptoms only, or where there are objective sensory symptoms such as decreased sensation that are productive of minimal or no functional impairment. Moderate incomplete paralysis exists where there are objective sensory symptoms only that are productive of severe functional impairment, or abnormal reflexes or reduced muscle strength productive of substantial functional impairment. Moderately severe incomplete paralysis exists where there are abnormal reflexes or reduced muscle strength productive of severe functional impairment without marked muscle atrophy. Severe incomplete paralysis exists where there is severe impairment resulting from marked muscle atrophy and abnormal reflexes, with trophic changes.

Private treatment records from the SSA dated June 2011, August 2011, September 2011, December 2011 and March 2012 show that the Veteran continued to report chronic back pain with burning pain to his legs. Neurological testing was normal, including muscle strength, reflexes and sensation, and straight leg raise testing was also negative.

At the November 2011 VA examination, the Veteran reported he had experienced falls due to his back disability, weakness of the spine, leg and foot, as well as constant back pain that traveled to the arms, chest, legs and foot. Neurological testing was normal, including muscle strength, reflexes and sensation. Straight leg raise testing was also negative.

A December 2012 SSA examination report reflects neurological testing was normal with normal muscle strength, reflexes and sensation, but straight leg raise testing was positive bilaterally. The examiner diagnosed lumbar spine radiculopathy.

The February 2018, September 2023, and August 2024 VA examination reports show muscle strength, reflex, and sensation was normal in the lower extremities, with no evidence of muscle atrophy. Straight leg raise testing was also negative. The Veteran did not endorse radicular pain or any other signs or symptoms due to radiculopathy and the examiner did not diagnose him with RLE radiculopathy. He also did not report any neurological symptoms affecting his RLE while testifying to the Board in July 2016, June 2022, and June 2025, apart from stating "not a whole lot" in response as to whether he had any symptoms in his legs in July 2016.

The above-cited findings indicate that the Veteran's RLE neurological symptoms are due to his service-connected back disability. The evidence during the earlier part of the appeal period, including the Veteran's subjective reports of minor RLE symptomology, is demonstrative of no more than mild incomplete paralysis. While the record does not specifically note impairment of sciatic nerve, given the AOJ's award of service connection for left lower extremity sciatic radiculopathy based on the December 2012 SSA examination report, the Board finds that the record supports sciatic nerve involvement based on the same for the RLE so as to assign a separate 10 percent rating for RLE radiculopathy under DC 8520 from April 14, 2011, the effective date of service connection for his back disability. Because the Veteran's RLE symptoms are wholly sensory and productive of minimal or no functional impairment and the contemporaneous examination reports and treatment records do not indicate signs or symptoms of "moderate" (medium) incomplete paralysis, "moderately severe" (between medium and serious) incomplete paralysis, "severe" (serious) incomplete paralysis, or complete paralysis, a rating in excess of 10 is not warranted at any point.

3. Entitlement to an initial 20 percent rating, but no higher, for ED is granted from April 14, 2011.

A September 2024 rating decision awarded service connection for ED
from April 14, 2011, the effective date of service connection for his back disability. Because the Veteran's RLE symptoms are wholly sensory and productive of minimal or no functional impairment and the contemporaneous examination reports and treatment records do not indicate signs or symptoms of "moderate" (medium) incomplete paralysis, "moderately severe" (between medium and serious) incomplete paralysis, "severe" (serious) incomplete paralysis, or complete paralysis, a rating in excess of 10 is not warranted at any point.

3. Entitlement to an initial 20 percent rating, but no higher, for ED is granted from April 14, 2011.

A September 2024 rating decision awarded service connection for ED and assigned a noncompensable rating from February 5, 2018 under 38 C.F.R. § 4.115b, DC 7522. The period on appeal is the same as that on appeal for the Veteran's back disability.

The rating criteria for DC 7522 was amended effective November 14, 2021. The Board may not retroactively apply the amended rating criteria prior to the effective date of amendment but may apply either the former or amended criteria thereafter, whichever is more favorable to the Veteran. Prior to November 14, 2021, ED is rated by analogy under DC 7522, which provides a 20 percent rating for physical deformity of the penis with loss of erectile power. Amended DC 7522 evaluates ED and provides noncompensable rating with or without penile deformity.

At the November 2011 VA examination, the Veteran denied experiencing ED in relation to his back condition. However, at the February 2018 VA examination report, he indicated the presence ED since his late forties due to his back condition. Notably, a July 2005 VA treatment record shows that the Veteran, at age 48, sought treatment for his history of orchialgia. He indicated the onset of groin pain immediately after a back injury one year prior and continuous pain ever since and reported erection difficulties over the past 6 months.

Affording him the benefit of the doubt, the Board finds that the evidence indicates the Veteran's ED has been analogous to the loss of erectile power since the beginning of the appeal period, despite any objective evidence of deformity. See Webb v. McDonough, 71 F.4th 1377 (Fed. Cir. 2023). Therefore, a 20 percent rating under former DC 7522 is warranted from April 14, 2011. Because 20 percent is the maximum rating available under former DC 7522, a higher rating is not available.

4. Entitlement to a TDIU is granted from April 14, 2011.

A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38?C.F.R. §?4.16.

Service connection is in effect for back and neck disabilities, ED, and bilateral lower extremity radiculopathy for a combined rating of 60 percent from April 14, 2011 based on the ratings awarded above.

The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his ability to perform the physical and mental activities required by the occupation in question. See Ray v.?Wilkie, 31?Vet. App.?58, 73 (2019).

The evidence reflects the Veteran's last physical day working was in January 2005 and that he has been unemployed since June 2007. See December 2009 VA Form 21-4192 and correspondence. He reported that he does not receive income from employment exceeding the federal poverty threshold. See August 2009 VA Form 21-8940. This is in accord with the economic component of entitlement to a TDIU. Regarding the noneconomic component, the Veteran indicated prior work experience as a custodian, having a 9th grade education, and additional education or training in auto repair and AC. Id.

The evidence of record indicates that the Veteran is unemployable due to his service-connected back disability. In this regard, the February 2018 VA examiner determined that the Veteran's back disability impacted his ability to work, noting he needed to work in a seated position with intermittent standing and walking for short periods every 30 minutes and could not lift, push, or pull more than 20 pounds. The September 2023 VA examiner found that his back disability caused difficulties with bending, lifting, walking, and standing that made it hard for him to do work. The August 2024 VA examiner described the impact of the Veteran's back on his ability to work as difficulty bending and lifting objects, standing more than 30 minutes, sitting more than 30 minutes, walking more than a block, inability to run, and difficulty lifting more than 20 pounds. The examiner further noted that the Veteran had difficulty getting out of bed and using the shower or toilet facilities during flare-ups. While the November 2011 VA examiner stated that the Veteran's back disability did not affect his usual occupation, she found that his back pain limited all physical activity.

In September 2024, VA's Director of Compensation Service conceded that the Veteran's service-connected conditions could cause occupational limitations but found that the preponderance of evidence did not show he was unable to obtain or maintain gainful employment because of them.

During a February 2025 private vocational assessment, the Veteran described limitations related to his back disability that had been present since 2011, including difficulty standing, walking, or sitting for prolonged periods, inability to bend, squat, or stoop, pain with lifting items more than 5 pounds, constantly changing positions to achieve comfort, difficulty lifting items of significant weight, weakness and instability while ambulating, fatigue and low energy, and difficulty concentrating due to physical pain and weakness. The vocational consultant stated that the very basic requirements to sustain competitive employment at any exertional or skill level required the worker to sustain focus and attention for at least 2 hours at a time throughout the workday, attend work on a regular schedule, free from absences or tardiness, and consistently produce a certain, minimal amount of work while on the job, and that the worker could not take unscheduled breaks or leave the workstation, except at designated break times. She opined that the Veteran would be unable to satisfy most, if not all, of these basic requirements due to the combination of symptoms from his back disability. She noted that the Veteran reported experiencing falls due to his back at the November 2011 VA examination and indicated that he would be considered a safety risk. She explained that his symptoms, such as back pain, weakness, radiculopathy pain, instability, and fatigue, would cause him to become distracted from work throughout the day and lead to excessive time off task. She specifically noted that his concentration impairment would preclude him from retaining information and negatively impact his ability to learn new skills. She determined that the Veteran would not be considered a reliable and productive employee and as a result, he would be unable to maintain employment due to an inability to meet competitive standards of work. Thus, she concluded that the Veteran had been unable to secure or follow any substantially gainful occupation employment, to include unskilled sedentary employment, since at least 2011.

At the July 2016, June 2022, and June 2025 Board hearings, the Veteran consistently testified that he worked only in positions requiring strenuous physical labor and that his qualifications were limited to such work and described the functional impacts of his back disability. In June 2022 and June 2025, he stated he would be unable to perform predominately seated work due to the lack of skills and inability sit, stand, or lay too long and had to constantly switch positions.

The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to a service-connected disability is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Given the above-cited evidence of record, the Veteran's level of education and occupational background, his competent and credible reports, and affording him the benefit of the doubt, the Board finds that the Veteran has been unable to secure or maintain

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