Citation Nr: 18147990 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-18 767 DATE: November 6, 2018 ORDER Entitlement to a rating in excess of 40 percent for a low back disability is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran’s low back disability is not manifested by ankylosis of the thoracolumbar spine, or by incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 6 weeks during the past 12 months. 2. For the entire period on appeal, the Veteran’s radiculopathy of the right lower extremity has been manifested by moderate incomplete paralysis of the sciatic nerve. 3. For the period from April 12, 2012, to April 24, 2018, the Veteran has a combined disability rating of 50 percent, that includes ratings of 40 percent for the low back and 20 percent for radiculopathy of the right lower extremity, which does not meet the schedular requirements for a TDIU even considering the common etiology of the disabilities. 4. For the period from April 24, 2018, the Veteran’s combined disability rating is 60 percent as it includes additional ratings for 10 percent for radiculopathy of the left lower extremity and, a noncompensable evaluation for a surgical scar associated with the low back disability, which does meet the schedular requirements for TDIU. 5. Regardless, the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.71(a), Diagnostic Code 5237 (2017). 2. The criteria for a rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124(a), Diagnostic Code 8520 (2017). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1970 to December 1973 and from December 1990 to May 1991. Here, the Board notes that Veteran filed his claim for an increased rating for the low back on April 12, 2012. As such, the relevant temporal focus for this claim is one year prior to the date of filing, April 12, 2011. Additionally, the Veteran filed a claim for entitlement to TDIU in May 2015. See VA Form 21-8940. However, as the issue of TDIU is raised pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) as part and parcel of a claim for a higher rating for the low back disability, the period on appeal for evaluation of a TDIU based on the Veteran’s service-connected disabilities is from the date of receipt of the claim for an increased rating, which is April 12, 2012. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of her disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Under the current rating criteria, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71 (a). A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. Evaluations for intervertebral disc syndrome are to be performed either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71 (a), Note 6. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. As described above, the higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Diagnostic Code 5242. The Court, citing Dorland’s Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as “immobility and consolidation of a joint due to disease, injury or surgical procedure,” for VA compensation purposes. See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). The General Rating Formula for Diseases and Injuries of the Spine, provide further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. As mentioned, in addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. In the present case, the only evident associated neurologic manifestations are left and right radiculopathy of the lower extremities, for which service connection has already been established. Further, the Board notes that the Veteran has only perfected an appeal with respect to the radiculopathy of the right lower extremity. Additionally, service connection has been established for a surgical scar associated with the low back disability. However, similarly to the left lower extremity disability, the Veteran did not appeal the rating decision establishing service connection. In Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc) the Court recognized that VA has broad discretion to dismember a claim and adjudicate the pieces in jurisdictionally separate proceedings. See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (“Bifurcation of a claim generally is within VA’s discretion.”). Therefore, the Board need not consider the evidence pertaining to the left lower extremity radiculopathy or the surgical scar and will be limiting the discussion to the low back and right lower extremity radiculopathy. Diagnostic Code 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2017). Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. In rating diseases of the peripheral nerves, 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 should be for the mild, or at most, the moderate degree. Id. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. § 4.2, 4.6. Where there is a question as to which of two evaluations shall be applied, 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. For the sake of brevity, the Board will proceed with a synopsis of the evidence pertinent to all claims currently on appeal and then will apply the laws and regulations below. Here, the Veteran is currently in receipt of a 40 percent rating for his low back disability pursuant to Diagnostic Code 5237, and a 20 percent rating for radiculopathy of the right lower extremity pursuant to Diagnostic Code 8520. He is seeking higher ratings for each of these disabilities. The evidence of record includes VA examinations dated in July 2012, August 2015, October 2017, and April 2018. Additionally, there are VA and private treatment records included in the claims file. In the July 2012 VA examination, the examiner confirmed a diagnosis of recurrent herniated nucleolus pulpous. Veteran denied suffering from flare-ups. Range of motion testing revealed flexion to 30 degrees, with pain at 10 degrees; extension to 10 degrees, with pain at the endpoint; right and left lateral flexion to 20 degrees, bilaterally, with pain at the endpoint; and, left and right lateral rotation to 30 degrees, bilaterally, with pain at the endpoint. There was no additional limitation of motion following repetitive motion, but the examiner indicated additional functional limitations manifested by less movement, incoordination, pain, and interference with sitting, standing, or weight-bearing. Additionally, guarding and/ or muscle spasms were present but did not result in abnormal gait or spinal curvature. There was also evidence of muscle atrophy in the right lower extremity. Muscle strength was decreased in both lower extremities. Sensory and deep tendon reflexes were decreased in the right lower extremity. Straight leg raising was negative, bilaterally, but the examiner noted the presence of radiculopathy in the right lower extremity, evidenced by moderate pain and mild paresthesias. Overall, the examiner indicated there was moderate involvement of the right sciatic nerve. The examiner also noted there were incapacitating episodes due to IVDS but determined they did not require physician prescribed bedrest. It was found that the Veteran required the constant use of a cane. Finally, the examiner indicated the Veteran’s low back disability impacted his employment as he could not perform labor/ standing activities, but could perform sedentary work. The Veteran was reexamined in August 2015. At that time, a diagnosis of lumbar strain was provided. The Veteran reported constant pain, difficulty sitting longer than 30 minutes, difficulty walking farther than 200 feet, and has been unable to work since 2013. The Veteran reported flare-ups occurring “all the time,” with functional loss. Range of motion, including on repetition, was unable to be tested due to the Veteran’s report of extreme pain. However, there was no evidence of pain on weight-bearing, localized tenderness, pain on palpation, guarding or muscle spasms. The examiner did indicate that the examination was being conducted during a flare-up and functional impairment included pain, fatigue, weakness, lack of endurance, and incoordination. Deep tendon reflexes and sensory examinations of the lower extremities were normal. Straight leg raising was not performed and the examiner did not find evidence of radiculopathy. There was no evidence of ankylosis, bowel or bladder impairment, or IVDS. It was noted the Veteran required the regular use of a cane for ambulation. As for any impact on the Veteran’s employability, the examiner stated that the Veteran reports continuous pain that limits his ability to perform work like activities. However, the examiner also noted inconsistent findings on examination, evidenced by decreased muscle strength in the dorsiflexion but also noting the Veteran does not also walk with a limp. The examiner determined that, based on the Veteran’s clinical presentation, he could likely perform light duty or desk type work, and is unlikely to able to perform heavy duty work. Restriction at work would include lifting over 10 pounds, no standing or sitting for longer than 30 minutes without change in position, no walking farther 100 feet without rest, and no climbing, squatting, or crawling. The Veteran was next examined by VA in October 2017 to reassess the severity of his low back disability. The examiner noted diagnoses of degenerative arthritis of the lumbar spine and spondylolisthesis. The Veteran reported flare-ups and described them as “excruciating pain.” The Veteran stated the flare-ups occurs with a minimal increase in activity and during cold and rainy weather. The Veteran again declined to participate in range of motion testing due to an inability to stand independently as a result of pain and instability. Similarly, the examiner was unable to test range of motion after repetitive use, but indicated it was consistent with the Veteran’s statements of pain. Further, functional loss after repeated use over time was noted to be due to pain. Additionally, the examination was not conducted during a flare-up but functional loss was again determined to be due to pain. However, the examiner noted there was pain evident on rest and weight-bearing. There was also objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the spine. There was no evidence of guarding or muscle spasms. The examiner indicated that additional contributing factors of the Veteran’s disability included less movement than normal due to ankylosis, limitation or blocking, or adhesions, and interference with sitting and standing. There was no evidence of muscle atrophy, and deep tendon reflexes and sensory examinations were normal. Straight leg raising was positive in the right lower extremity and the examiner confirmed a diagnosis of radiculopathy, determined to be moderate in severity. There were no other neurological manifestations were noted. The examiner stated the Veteran does not have ankylosis or IVDS. The Veteran also required the constant use of a cane and the occasional use of a walker. Finally, as to whether there is any impact on the Veteran’s ability to work, the examiner stated that the functional impact is that a task requiring prolong sitting, standing and walking; heavy lifting, kneeling, squatting, climbing and forward bending is significantly limited. The Veteran was also given a VA examination of the peripheral nerves in October 2017. During the examination, the VA examiner confirmed a diagnosis of radiculopathy of the right lower extremity involving the sciatic nerve. The Veteran reported experiencing frequent pains with a burning sensation, and stated that he has to use a walker now due to frequent sharp pains that radiate down his right lower extremity. He also reported experiencing constant numbness in his right lower extremity that affects his ability to bear weight and ambulate. The Veteran also reported that he has to wear absorbent material because he has difficulty getting to the restroom in time due to slow antalgic gait, although neurogenic bowel and bladder impairment has not been objectively shown. He reports difficulty sleeping at night due to increase pain. Upon physical examination, the Veteran has an antalgic gait due to his radiculopathy and low back disability. It was ultimately determined that the Veteran has moderate incomplete paralysis of the sciatic nerve of the right lower extremity. Regarding employability, the examiner commentated that the impact of the peripheral neuropathy on the Veteran’s ability to work is that prolonged sitting, standing and walking; heavy lifting; kneeling; squatting; climbing; and, forward bending aggravates the disability. The Veteran was most recently examined by VA in April 2018. At that time, the Veteran again reported experiencing flare-ups that he stated occurred “when sitting or standing more than 15 minutes, [his] back starts to tingle and go numb.” The Veteran also reported that functional impairment due to back disability includes difficulty bending, kneeling, squatting, lifting, climbing and walking, sitting and standing for prolong periods due to pain. Range of motion testing revealed flexion to 40 degrees, extension to 5 degrees, and right and left lateral rotation and flexion all to 15 degrees. Pain was noted on all movements and resulting in functional loss. The Veteran was able to perform repetitive testing with no additional loss of function or limitation of motion. As to whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up, the examiner was unable to comment without resort to mere speculation as the Veteran was not examined after repeated use or during a flare-up. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the lumbar spine. However, there was no evidence of pain on weight-bearing, guarding or muscle spasms, additional contributing factors of the disability, or muscle atrophy. Additionally, deep tendon reflexes and sensory examination was normal. Straight leg raising was positive, bilaterally. The examiner confirmed radiculopathy of the right and left lower extremities and determined it was of mild severity, bilaterally. There was also no evidence of ankylosis, or other neurological impairments, such as bowel or bladder impairment. The examiner noted the presence of IVDS, but also found no evidence of doctor prescribed bedrest in the last 12 months. Regarding employability, the examiner indicate that the Veteran could perform sedentary work involving sitting most of the time, but that may also involve walking or standing for brief periods of time is appropriate. Conversely, jobs that require sitting most of the time but may also entail pushing and/or pulling of arm or leg controls, or jobs requiring walking, standing or working at a production rate pace entailing the constant pushing and/or pulling of materials, or exerting greater than 20 pounds of force occasionally and/or frequently is not appropriate for the Veteran. Also of record are VA treatment records that include notations of the Veteran’s complaints of pain associated with his service-connected radiculopathy and low back disabilities. However, these records do not contain any objective findings that are not already contemplated by the VA examinations noted above. 1. Entitlement to a rating in excess of 40 percent for a low back disability Applying the facts of this case to the applicable laws and regulations, the Board finds that the Veteran is not entitled to the next higher rating of 50 percent. In order for the next higher rating of a 50 percent evaluation under Diagnostic Code 5237, the medical evidence must show unfavorable ankylosis of the entire thoracolumbar spine. For a 100-percent evaluation, the medical evidence must show unfavorable ankylosis of the entire spine. That is simply not shown by the evidence in this case. Specifically, the Veteran’s July 2012 and April 2018 examination reports reflect a clear finding of no ankylosis of the thoracolumbar spine. Additionally, while the Veteran declined range of motion testing in the August 2015 and October 2017 VA examinations, there was also no objective indication of ankylosis. Further, an increased rating is not warranted on the basis of incapacitating episodes of IVDS, under Diagnostic Code 5243. Under Diagnostic Code 5243, in order to establish a rating of 50 percent, the evidence must reflect there are incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the past 12 months. Although the July 2012 and April 2018 VA examiners found that IVDS was present, the VA examiners noted no incapacitating episodes within the past 12 months. Furthermore, the medical evidence does not support IVDS, as for purposes of rating under Diagnostic Code 5243, Note (1) provides that 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. 38 C.F.R. § 4.71(a), Diagnostic Code 5243. In this case, even accepting that the Veteran had an IVDS diagnosis in July 2012 and again in April 2018, there is no indication in the record of physician-prescribed bedrest specifically on account of IVDS least 6 weeks during the past 12 months, as is required for a rating in excess of 40 percent. See Id. Moreover, even considering any possible additional functional impact as a result of pain, fatigue, weakness, lack of endurance, or incoordination, the fact remains the Veteran has motion in his lumbar spine, which precludes a finding of ankylosis. Therefore, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran’s functional loss did not equate to the criteria required for a 50 percent rating. Further, to the extent VA examinations failed to comply with the holdings in Correia or Sharp, either individually or collectively, such non-compliance is harmless error. In this respect, the Court in Johnston, supra, indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. Johnston, 10 Vet. App. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). Thus, as the Veteran is in receipt of the maximum schedular rating based on limitation of motion and a higher rating requires ankylosis of other symptoms unrelated to limitation of motion, 38 C.F.R. § 4.40 and 4.45 are not for application. The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his back disability. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Board is likewise aware of the Veteran’s contentions that his back disability impacts his employability and daily activities. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and limitation of motion. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely, determinations as to range of motion of the thoracolumbar spine, functional impairment, and incapacitating episodes are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The medical evidence also largely contemplates the Veteran’s descriptions of his symptoms, including his reports of impairment with respect to sitting, standing, walking, running, bending, and lifting, as well as his reports of constant back pain. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In sum, the evidence deemed most probative by the Board establishes that the Veteran’s low back disability more nearly approximates the criteria for the currently assigned 40 percent rating and a higher rating is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 2. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity Turning the Veteran’s claim for an increased rating for his service connected radiculopathy of the right lower extremity, currently rated at 20 percent, the Board finds that the evidence does not support a higher rating. In order to be awarded the next higher 40 percent rating pursuant to Diagnostic Code 8520, the evidence must show moderately severe incomplete paralysis of the sciatic nerve. Here, the July 2012, August 2017, and October 2017 VA examinations all found that the Veteran’s radiculopathy is characterized by moderate incomplete paralysis of the right sciatic nerve, whereas the April 2018 VA examination provided a diagnosis of mild incomplete paralysis. There is simply no evidence to support a finding that the Veteran’s right lower extremity radiculopathy warrants the higher 40 percent rating, or even higher 60 or 80 percent ratings, requiring severe incomplete paralysis with marked muscle atrophy, and complete paralysis of the sciatic nerve, respectively. The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his radiculopathy of the right lower extremity. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Board is likewise aware of the Veteran’s contentions that his radiculopathy impacts his employability and daily activities. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain, numbness, and radiation down his right extremity. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely, determinations as to the current severity of the neurological impairment with regard to evaluating the pertinent symptoms for the disability on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The medical evidence also largely contemplates the Veteran’s descriptions of his symptoms, including his reports of constant pain, numbness, and radiation down his extremity. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. As such, the Board finds that a rating in excess of 20 percent for radiculopathy of the right lower extremity is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Entitlement to a TDIU The Veteran is seeking entitlement to a TDIU on the basis that he is unable to secure or follow substantiality gainful employment as a result of his service connected disabilities. TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Regarding the Veteran’s service-connected disabilities, for the period from April 12, 2012, to April 24, 2018, the Veteran has a combined disability rating of 50 percent, that include ratings of 40 percent for the low back and 20 percent for radiculopathy of the right lower extremity. However, effective from April 24, 2018, the Veteran’s combined disability rating is 60 percent as it includes additional ratings for 10 percent for radiculopathy of the left lower extremity and, a noncompensable evaluation for a surgical scar associated with the low back disability. For purposes of determining eligibility for consideration of TDIU, the Veteran’s disabilities all form a “common etiology”; therefore, all the service-connected disabilities may be considered as one disability ratable. However, even considering the common etiology of the disabilities, the Veteran only meets the disability rating criteria of a 60 percent rating from April 24, 2018. Nevertheless, a TDIU may still be available if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). As such, pursuant to 38 C.F.R. § 4.16(b), consideration must be given as to whether the Veteran is entitled to a TDIU on an extraschedular basis. The Board notes that entitlement to a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), and an extra-schedular rating under 38 C.F.R. § 3.321(b)(1), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In this regard, the Board notes that, for a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. Significantly, however, the Board does not have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating). It may, however, determine that a particular case warrants referral to the Director of Compensation and Pension for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16 (b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. § 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2017). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). In this case, the evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Specifically, the Veteran has been afforded numerous VA examinations, dated in July 2012, August 2015, October 2017, and April 2018, as discussed in detail above. The examiners all provided limitations on the Veteran’s employment, including an inability to perform labor (i.e., pulling, carrying, lifting) and standing activities, but it was unanimously noted that the Veteran could perform sedentary work. In the case of the Veteran, his VA Form 21-8940 noted he was previously self-employed working as a delivery service, which is largely a sedentary activity. Therefore, while the Board readily acknowledges that the Veteran’s service-connected disabilities do limit his physical activities, in light of the Veteran’s overall disability picture and specific education and vocational history, the evidence does not show that he is precluded him from securing or following any substantially gainful occupation as a result of his service-connected disabilities. See Withers v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1054 (August 10, 2018). Based on the foregoing, the Board finds that the evidence fails to show that the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. Rather, the evidence of record shows that, while the Veteran may be unemployed, it does not indicate that he is unemployable as a result of his service-connected disabilities. In essence, the evidence shows that, although the Veteran’s service-connected disabilities resulted in some impairment at work regarding physical demands, the evidence does not show that he is unable to secure or maintain any gainful employment as a result of these disabilities. In making this determination, the Board finds it significant that, after examining the Veteran and reviewing the claims file, not one of the multiple VA examiners concluded that he was unable to secure or maintain gainful employment as a result of the service connected disabilities. Additionally, the Board notes that the Veteran himself has failed to specifically argue that he is unable to work as a result of his service-connected disabilities. He merely noted that he has been unemployed since his back surgery in 2013. See May 2015 VA Form 21-8940. As previously mentioned, there is no competent medical evidence or opinion to suggest that the factors noted during the examinations above render him incapable of obtaining and maintaining substantial employment. See 38 C.F.R. § 3.159(a)(1) (defining competent medical evidence). (Continued on the next page)   Based on the foregoing, the Board concludes that this case does not present any unusual or exceptional circumstances that would justify a referral of the total rating claim to the Director of the VA Compensation and Pension Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b) for the period prior to April 24, 2018, or sufficient to award a TDIU pursuant to 38 C.F.R. § 4.16(a) thereafter. As discussed above, the Veteran’s service-connected disabilities have not been shown to cause any impairment that is not already contemplated by the currently assigned rating criteria, and the Board finds that the rating criteria reasonably describe his disability. Moreover, no medical professional has ever stated that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation, but has merely noted there to be limitations as to his physical capabilities. As such, in the absence of any evidence of unusual or exceptional circumstances beyond that which is contemplated by the assigned schedular disability evaluations, the preponderance of the evidence in this case is against the claim. The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C. §5107 (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Therefore, the Veteran’s claim for entitlement to a TDIU is denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel