Citation Nr: 20021534 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 04-04 184 DATE: March 26, 2020 ORDER As of October 11, 2001, a 20 percent initial rating for degenerative arthritis of the lumbosacral spine is granted. As of February 27, 2003, a separate noncompensable rating for voiding dysfunction as intermittent urinary incontinence due to low back pain is granted. As of February 27, 2003, a separate 10 percent rating for occasional bowel incontinence due to low back pain is granted. As of November 1, 2014, an initial 40 percent rating for radiculopathy of the right lower extremity is granted. As of November 1, 2014, an initial 40 percent rating for radiculopathy of the left lower extremity is granted. An effective date before February 11, 2003 for the grant of service connection for radiculopathy of the right lower extremity is denied. An effective date before September 22, 2003 for the grant of service connection for radiculopathy of the left lower extremity is denied. As of October 11, 2001, an earlier effective date for the assignment of a total disability rating due to individual unemployability (TDIU) as the result of service-connected disabilities is granted. As of October 11, 2001, an earlier effective date for the grant of Dependents’ Educational Assistance (DEA) benefits is granted. FINDINGS OF FACT 1. Throughout the appeals period, the Veteran is described as having an antalgic or limping gait due to pain. The evidence is not determinative that this limping pain is due to the Veteran’s service-connected back pain as opposed to service-connected knee pain, but the Board will resolve reasonable doubt in favor of the Veteran in this regard and find that the pain from his service-connected lumbar spine disability is severe enough to result in an abnormal gait due to guarding. 2. As of February 27, 2003, the Veteran exhibits intermittent bowel and bladder incontinence, and the Board will resolve reasonable doubt in the Veteran’s favor that these conditions are due to his service-connected lumbar spine disability. 3. As of November 1, 2014, the Veteran exhibits moderately severe radiculopathy of the bilateral lower extremities, without marked muscular atrophy. 4. The Veteran did not exhibit radiculopathy of the right lower extremity as an objective neurologic abnormality associated with his service-connected lumbar spine disability prior to February 11, 2003. 5. The Veteran did not exhibit radiculopathy of the left lower extremity as an objective neurologic abnormality associated with his service-connected lumbar spine disability prior to September 22, 2003. 6. Resolving reasonable doubt in favor of the Veteran, by reason of his service-connected disabilities alone, including the pain symptoms stemming therefrom, he was precluded from obtaining or maintaining substantially gainful employment throughout the period on appeal. 7. The Veteran is found to have a permanent total service-connected disability based on the TDIU rating assigned above as of October 11, 2001; an earlier effective date for entitlement to Dependents’ Educational Assistance benefits is granted. CONCLUSIONS OF LAW 1. As of October 11, 2001, the criteria for 20 percent initial rating for degenerative arthritis of the lumbosacral spine are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5242. 2. As of February 27, 2003, the criteria for a separate noncompensable rating for intermittent bladder incontinence due to low back pain has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.40, 4.71a Diagnostic Code 5242 Note (1), 4.115A. 3. As of February 27, 2003, the criteria for a separate 10 percent rating for intermittent slight bowel incontinence due to low back pain has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.40, 4.71a Diagnostic Code 5242 Note (1), 4.114 Diagnostic Code 7332. 4. As of November 1, 2014, the criteria for an initial 40 percent rating for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.40, 4.124A Diagnostic Code 8520. 5. As of November 1, 2014, the criteria for an initial 40 percent rating for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.40, 4.124A Diagnostic Code 8520. 6. The criteria for an effective date before February 11, 2003 for the award of service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 7. The criteria for an effective date before September 22, 2003 for the award of service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 8. The criteria for an effective date of October 11, 2001 for the award of the Veteran’s TDIU rating have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.3. 9. As of October 11, 2001, the criteria for entitlement to DEA benefits have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1985 to October 1986. Although he was discharged under other than honorable conditions, an April 1987 VA Regional Office administrative decision has previously determined that this status is not a bar to the receipt of benefits and will be considered to be an honorable discharge for VA purposes. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in June 2012 to present testimony on the matter of service connection for a lumbosacral spine disability. After a lengthy appellate history, the Regional Office granted service connection for this disability manifested by lower back pain and assigned an initial evaluation of 10 percent effective October 11, 2001 and a higher staged rating of 20 percent effective as of April 17, 2008. Rating decision, November 2017. Thereafter, the Veteran disagreed with the initial rating assigned for the service-connected lumbosacral spine disability, including both the assigned evaluation and effective dates for radiculopathy of the bilateral lower extremities as objective neurological abnormalities associated with the lumbosacral spine disability and the present appeal ensued. Notice of disagreement, May 2018. 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 are based on the average impairment of earning capacity resulting from service-connected disability; separate diagnostic codes (DCs) identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All potentially applicable rating criteria and regulations must be considered. 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. 1. A 20 percent initial rating for degenerative arthritis of the lumbosacral spine as of October 11, 2001 is granted. The Veteran seeks an initial rating greater than 10 percent from October 11, 2001 and 20 percent from April 17, 2008 without specifically raised contentions. See Notice of disagreement, May 2018. Throughout the appeals period, ratings for degenerative arthritis, including osteoarthritis, as established by x-ray findings are to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. Therefore, the Board turns to the appropriate diagnostic codes to evaluate limitation of motion of the lumbar spine. Of note, the criteria for evaluating spine disabilities were amended twice during the pendency of this appeal, with changes effective September 23, 2002 and September 26, 2003. If a law or regulation changes during the course of an appeal, the version more favorable to the appellant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 & 3-2000. Prior to September 23, 2002 Ratings were available for ankylosis (complete bony fixation) of the entire spine and of the lumbar spine at DCs 5286 and 5289, dependent upon whether such fixation was at a favorable or unfavorable angle. However, as this Veteran is not shown to have bony fixation of the entire spine or the lumbar spine at any point during this appeal, these prior ratings based on ankylosis are not relevant here. Prior to the September 2002 regulation change, limitation of motion of the lumbar spine was rated under DC 5292 with slight limitation assigned a 10 percent rating, moderate limitation a 20 percent rating, and severe limitation a 40 percent rating. Terms 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, 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. The rating for intervertebral disc syndrome (IVDS) in effect prior to September 23, 2002, was identified by DC 5293 and assigned a 60 percent rating for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the site of the diseased disc and little intermittent relief. A 40 percent rating was assigned for severe intervertebral disc syndrome, with recurrent attacks, with intermittent relief, a 20 percent rating when moderate with recurrent attacks, a 10 percent rating when mild, and a noncompensable rating for postoperative, cured. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). In this case, prior to September 23, 2002, the Veteran underwent a VA examination in April 2002. At that time, he reported low back pain that was constant and presented difficulty in walking and bothered him in activities of daily life. His lumbar spine forward flexion was 90 degrees (normal), extension was 10 degrees (where 30 degrees is normal), and lateral flexion was 25 degrees (where 30 degrees is normal). Straight leg raising revealed some discomfort in the lower back. The examiner opined that the Veteran’s lower back pain was likely due to a leg length discrepancy whereby his left leg was at least one inch longer than the right leg. VA examination, April 2002. The Veteran’s back pain is described as not having onset until after he developed knee pain and consisting of sharp and dull, aching, throbbing, burning pain that was intermittent and non-radiating typically ranking as an 8 out of 10 on a pain intensity scale. He reported that his pain was aggravated by lifting, prolonged sitting or standing and walking, and was relieved with pain medications such as naproxen and Tylenol, hot packs, or soaking in a hot tub. At that time, he had not tried other therapies for his back pain. The Veteran demonstrated full range of motion with pain on flexion, but not on extension. VA treatment notation, June 2002. Prior to September 23, 2002, the record does not reflect a diagnosis of IVDS or symptoms compatible with sciatic neuropathy, thus a rating for IVDS is not warranted under DC 5293. However, based on the limitation of motion shown, particularly as to limitation of extension reflected on the April 2002 VA examination, the Board finds that a 20 percent rating is warranted under DC 5292 for a moderate limitation of motion. The Board does not find a severe limitation of motion as the Veteran demonstrated full range of motion, including extension without pain, at the time of the June 2002 VA treatment. Nonetheless, the Board will resolve reasonable doubt in favor of the Veteran and find that a 20 percent rating, but not higher, is warranted based on moderate limitation of motion for this period. 38 C.F.R. § 4.71a, DC 5292 (in effect prior to September 23, 2002). Between September 23, 2002 and September 26, 2003 Diagnostic Code 5292 for ratings based on limitation of motion of the lumbar spine remained unchanged between the September 2002 and the September 2003 and the discussion above remains applicable during this period. However, the criteria to evaluate IVDS were changed during this period. IVDS (whether preoperative or postoperative) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. With incapacitating episodes having a total duration of at least six weeks during the prior 12 months, a 60 percent rating was assigned, total duration of at least 4 weeks but less than 6 weeks a 40 percent rating was assigned, total duration of at least 2 weeks but less than 4 weeks a 20 percent rating was assigned, and with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months a 10 percent rating was assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 26, 2003). For the purpose of applying DC 5293, 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. The evidence continues to show no explicit diagnosis of IVDS and, moreover, does not reflect incapacitating episodes with bed rest prescribed by a physician at any time. Thus, an increased rating based on incapacitating episodes is not appropriate. During this period however, as of February 11, 2003, there are both orthopedic and neurologic manifestations of lumbar spine disability, that are granted separate ratings as discussed in greater detail below. In this regard, the Veteran’s lumbar spine disability is evaluated by combing under 38 C.F.R. § 4.25 the separate evaluations of its chronic orthopedic and neurologic manifestations as this results in a higher evaluation than consideration based on incapacitating episodes. 38 C.F.R. § 4.71a, DC 5293 (in effect between September 22, 2002 and September 26, 2003). With regard to the orthopedic manifestation of lumbar spine disability, the rating based on limitation of motion remains at 20 percent for moderate limitation, as there is no evidence to show an increase to severe limitation of motion during this period. Since September 26, 2003 Subsequent to the September 2003 regulation change, the Veteran’s degenerative arthritis of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Regarding neurological impairment, the Veteran has already been granted service connection for associated neurological disabilities including bilateral lower extremity radiculopathy and urinary and bowel incontinence, discussed below. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Nonetheless, the Board has considered whether a lumbar spine disability rating in excess of the currently assigned 10 percent from October 11, 2001 or 20 percent from April 17, 2018 is warranted. Considering all the evidence, including under the former regulations as discussed above, the Board finds that an initial 20 percent rating is warranted throughout the appeal based on a moderate limitation of motion of the lumbar spine. The evidence does not reflect that a rating greater than 20 percent is warranted as the Veteran does not exhibit forward flexion of the thoracolumbar spine to 30 degrees or less, nor ankylosis of the lumbar spine. Upon most recent VA examination in October 2017, the Veteran showed full forward flexion of 90 degrees, although 10 degrees of diminished range of motion in extension and bilateral lateral flexion, as well as no lateral rotation. Although flare-ups of the low back disability were described, with pain, fatigue, and lack of endurance limiting functional ability during such a flare-up, the examiner estimated that there would be no further limitation in range of motion beyond that demonstrated on examination. Additional documented range of motion testing is not inconsistent with this finding. See, e.g., VA treatment records & VA examination, February 2012 (documenting 50 degrees of forward flexion). Based on the foregoing, the preponderance of the evidence supports an initial 20 percent rating throughout the period on appeal, and no higher, for degenerative arthritis of the lumbosacral spine. 2. Separate ratings of 10 percent for intermittent bowel incontinence and zero percent for bladder incontinence as objective neurological abnormalities associated with low back pain are granted as of February 27, 2003. As discussed above, since the regulatory change in September 2003, any objective neurological abnormalities associated with the Veteran’s lumbar spine disability, including bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. However, as the Veteran first reported intermittent urine and bowel incontinence due to back pain in February 2003, and the former September 2002 regulation change in evaluating spine disabilities also allowed combining separate evaluations under 38 C.F.R. § 4.25 for chronic orthopedic and neurologic manifestations of spine disability, the Board finds it appropriate to grant separate ratings for bowel and bladder incontinence as of February 27, 2003. See VA treatment orthopedic note, February 2003 (showing the Veteran’s report of awaking in a pool of urine due to back pain and having “a few bouts” of bowel incontinence). A prior June 24, 2002 VA treatment note shows no bowel or bladder incontinence, as does a subsequent October 9, 2003 treatment note, and a February 20, 2004 neurological evaluation of the Veteran’s lumbar spine disability also shows no findings regarding incontinence. However, the Board has resolved reasonable doubt in favor of the Veteran in regard to the assignment of the separate ratings for bowel and bladder incontinence as the Veteran is competent to report these symptoms without specialized medical knowledge or education, and the Board finds no reason to doubt the Veteran’s credibility in the documented report of symptoms occurring on February 27, 2003. Thus, although the reports are inconsistent between VA treatment notations in February and October 2003, the Board resolves reasonable doubt in favor of the Veteran and assigns separate ratings for bowel and bladder incontinence, as due to back pain, effective as of February 27, 2003 and no earlier. The Board does not find credible evidence of bowel or bladder incontinence due to back pain prior to February 27, 2003. Bowel incontinence is rated analogously under 38 C.F.R. § 4.114, DC 7332 which provides ratings based on impairment of sphincter control of the rectum and anus. A zero percent rating is assigned for healed or slight impairment, without leakage. A 10 percent rating is assigned for constant slight leakage or occasional moderate leakage. A 30 percent rating is assigned for occasional involuntary bowel movements, necessitating wearing of pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements, and a 100 percent rating is warranted for complete loss of sphincter control. Here, the Veteran’s symptom of bowel incontinence is not specifically described in terms of the severity of any leakage occurring, whether it be slight or moderate. The Board must evaluate the impairment caused by this disability given the Veteran’s own words on the matter. In February 2003, he stated that there had been “a few bouts of bowel incontinence.” In October 2003, he denied bowel incontinence. Then, in April 2004 he stated that “if he walks far he loses bowel and bladder control and that this has been going on for some time.” VA treatment records. At no time does the Veteran describe complete loss of sphincter control, extensive leakage or fairly frequent involuntary bowel movements, nor a requirement for wearing of an absorbent pad due to fecal incontinence. Thus, a rating of 30 percent or higher is not warranted here. However, the Board finds the Veteran’s report of bowel leakage from February 2003 to the present to be consistent with occasional leakage, whether slight or moderate in extent, and such occasional leakage without the wearing of a pad warrants a separate 10 percent rating. With regard to urinary incontinence, this condition is evaluated under 38 C.F.R. § 4.115A as voiding dysfunction (urine leakage) as the most predominant area of dysfunction described by the Veteran, as opposed to obstructed voiding or urinary frequency. Urinary incontinence requiring the wearing of absorbent materials which must be changed less than 2 times per day is evaluated as 20 percent disabling, requiring absorbent materials to be changed 2 to 4 times per day is evaluated as 40 percent, and requiring the use of an appliance or wearing of material which must be changed more than 4 times per day warrants a 60 percent rating. Of note, in every instance, including as here with urine leakage in voiding dysfunction, where the rating schedule does not provide a zero percent evaluation for the relevant diagnostic code, a zero percent evaluation is assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Here, the Veteran does not describe being required to wear absorbent materials that must be changed daily. Thus, where the requirements for a compensable evaluation are not met, a zero percent evaluation is assigned. A separate, noncompensable (zero percent) rating for urinary incontinence is assigned from February 27, 2003, as the date the Veteran first reported urinary incontinence due to back pain. The Board acknowledges that in a November 3, 2003 VA treatment notation, the Veteran described his urinary incontinence as existing for about 2 years. However, the Board affords more weight to the contemporaneous medical records prior to February 27, 2003 in which the Veteran denied urinary incontinence, or negative findings regarding incontinence were recorded. Greater weight is afforded to these records established at the time over the Veteran’s later recollection as to the approximate onset of this symptom. In sum, separate ratings are warranted for bowel incontinence rated as 10 percent disabling as of February 27, 2003 and urinary incontinence rated as zero percent disabling as of February 27, 2003, where both are considered to be objective neurological impairments associated with the Veteran’s service-connected lumbar spine disability. 3. As of November 1, 2014, initial 40 percent ratings for radiculopathy of the bilateral lower extremities are granted. As above, radiculopathy of the bilateral lower extremities is also considered to be objective neurological abnormalities associated with the Veteran’s lumbar spine disability. At present, the Veteran’s right lower extremity (RLE) radiculopathy is evaluated as 10 percent disabling from February 11, 2003 and 40 percent disabling from October 18, 2017. The Veteran’s left lower extremity (LLE) radiculopathy is evaluated as 10 percent disabling from September 22, 2003 to 20 percent disabling from October 18, 2017. Based upon a review of the evidentiary record in its entirety, the Board finds that as of November 1, 2014, and no earlier, initial 40 percent ratings for each lower extremity is warranted. In other words, prior to November 1, 2014, each lower extremity is rated as 10 percent disabling based on radiculopathy, with an increase to 40 percent disabling shown as of November 1, 2014. These conditions are rated under DC 8520 for paralysis of the sciatic nerve. A 10 percent rating is assigned for mild incomplete paralysis, 20 percent for moderate, 40 percent for moderately severe, and 60 percent for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted where there is complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124A. Here, the record shows no greater than mild incomplete sciatic paralysis before November 1, 2014. In May 2002, the Veteran reported low back pain that radiated into the left leg intermittently, but there was no motor or sensory loss. In June 2002, a VA physical medicine and rehabilitation note shows some conflict in that the Veteran subjectively reported non-radiating back pain with some numbness and tingling of both lower extremities, but the provider objectively noted no paresthesias or weakness in the lower extremities, and examination was negative for radicular symptoms. In October 2003, the Veteran reported numbness and tingling in the right foot and numbness in the left leg. The following month he reported back and hip pain with radiation of the pain into the left leg only “when it gets bad.” VA treatment record, November 2003. However, upon examination in November 2003, the Veteran exhibited a normal gait and had some tenderness to palpation over the low lumbar area, but had full strength in both lower extremities with negative straight leg raising test. A February 2004 VA treatment note reflects the first time that the Veteran’s lumbar spine was fully evaluated by the neurology service. At this time, a mild right lower extremity weakness was identified, but the neurological examination was otherwise normal. The Veteran described low back pain that caused increased difficulties in walking due to pain, and intermittent paresthesia in the complete leg, but denied muscle weakness. He reported that the leg numbness resolved with standing up and walking off the pain. The Veteran’s attorney cites to a March 2004 VA neurosurgery treatment notation as showing severe left lower extremity radiculopathy, but the text of the notation actually says, “He first presented to clinic 1 week ago [complaining of] severe [low back pain] radiating to [bilateral lower extremities], worse with ambulation.” VA treatment record, March 2004. As such, although the low back pain was severe, which is rated separately, the sciatic nerve paralysis or neurological impairment of the lower extremities is not expressly described as severe neurological impairment. Instead, the neurosurgery physician stated that his MRI revealed what was essentially a normal exam of the lumbar spine with minimal degenerative changes, but without disc herniation and “nothing in the realm of what would be considered for neurosurgical intervention.” VA treatment, March 2004. The Board does not find this to be more consistent with greater than mild neurological impairment under DC 8520. In April 2009, a neurology progress note reports more tingling experienced in the left lower extremity, but the provider noted lumbar spine radiculopathy was clinically unchanged since prior visit. However, as of November 2014, the Veteran reports low back pain that radiates down both legs, with tingling, numbness, and paresthesias in both legs, with left more than right, but no lower extremity atrophy was found. The Veteran describes his pain as a 10 out of 10 that is aggravated by sitting, standing, lying down too long, or walking too far. The Board finds this to be a worsening of symptoms and resolves reasonable doubt in the Veteran’s favor to find this to be most nearly approximated by moderately severe incomplete paralysis of the sciatic nerve. Higher ratings are not warranted as there is no muscular atrophy shown, nor symptoms consistent with complete paralysis of the sciatic nerve. A higher 40 percent rating is warranted for radiculopathy of each lower extremity as of November 24, 2014. Effective Dates The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a). Where, as here, application for service connection benefits is received more than one year after a Veteran’s separation from active service, the effective date of an award will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Additionally, the effective date for an award of increased disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(2). Here, the Veteran seeks earlier effective dates for additional ratings assigned for objective neurologic abnormalities associated with his service-connected lumbar spine disability, TDIU, and DEA benefits. 4. An effective date before February 11, 2003 for the grant of service connection for radiculopathy of the right lower extremity is denied. Service connection is currently in effect for right lower extremity radiculopathy associated with the Veteran’s service-connected degenerative arthritis of the lumbosacral spine, effective as of February 11, 2003. The Veteran contends that a 20 percent rating is warranted effective as of this date. As such, this appears to be a disagreement with the staged ratings assigned from February 11, 2003 forward, rather than a claim seeking an effective date before February 2003 for the grant of service connection for this disability. See Correspondence from Veteran’s attorney, January 2020. In adjudication above, the Board has granted a higher initial rating of 40 percent for right lower extremity radiculopathy as of November 1, 2014 and explained the reasons and bases for the effective date assigned for that staged rating. Nonetheless, because the Veteran perfected an appeal regarding an earlier effective date for service connection for radiculopathy, the Board proceeds to address that aspect of the claim here. See Statement of case, July 2019. In this regard, the effective date of service connection for right lower extremity radiculopathy is February 11, 2003 based upon a VA treatment notation from this date that states, “…he has had intermittent low back pain. He states that prolonged sitting or standing seem to worsen the pain. He has occasional radiating symptoms down the right leg. He denies any motor or sensory loss.” The Board finds that this is the first date at which it is factually ascertainable that the Veteran’s service-connected lumbar spine disability has an associated objective neurologic abnormality in the form of right lower extremity radiculopathy, such that an increased disability rating for the Veteran’s lumbar spine disability is warranted on this basis. Notably, several months prior, on June 24, 2002, a VA treatment records shows the Veteran had intermittent low back pain that was “non-radiating.” This examination included testing that was negative for radicular symptoms, and the physician stated “signs [and symptoms] are not suggestive of acute [lumbar spine] radiculopathy.” VA treatment record, June 2002. However, a subsequent neurological evaluation of the Veteran’s lumbar spine disability conducted on February 20, 2004 confirmed some mile right lower extremity weakness. Thus, considering the evidence as a whole, the Board finds that the February 11, 2003 notation is the first factually ascertainable right lower extremity radiculopathy symptoms associated with the lumbar spine disability, and there is no other credible evidence that the Veteran had reported experiencing right lower extremity radiculopathy prior to February 11, 2003. 5. An effective date before September 22, 2003 for radiculopathy of the left lower extremity is denied. As discussed above, a June 24, 2002 VA treatment record found no objective evidence of left lower extremity radiculopathy associated with the Veteran’s lumbar spine disability. The Board acknowledges that the record reflects a previous May 16, 2002 VA treatment notation containing the Veteran’s subjective report of “lower back pain radiating into left leg intermittently.” This May 2002 treatment occurred in the context of left knee problems, including left lower extremity pain, and it is difficult to ascertain any distinction between pain due to the Veteran’s low back disability and his left knee condition. While the Veteran is competent to report symptomatology that he experiences, including left lower extremity pain, he has not shown that he has the medical knowledge, experience, or training to correlate the left lower extremity pain to his lumbar spine disability, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with the appropriate expertise. Id. In this regard, the Board relies on the competent medical evidence against left lower extremity radiculopathy associated with the lumbar spine disability as of June 24, 2002. Of note, although a later neurological evaluation of the Veteran’s lumbar spine disability conducted on February 20, 2004 found only a mild right lower extremity weakness, without identifying a left lower extremity radiculopathy abnormality, and otherwise consisted of a stable neurological examination, the Board will not disturb the existing effective date assigned for left lower extremity radiculopathy. However, the Board finds no competent evidence of left lower extremity radiculopathy associated with the Veteran’s lumbar spine disability prior to September 22, 2003. 6. An earlier effective date of October 11, 2001 for the award of a TDIU rating is granted. To establish entitlement to a TDIU rating, there must be impairment so severe that a Veteran is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16; see also 38 C.F.R. §§ 3.340(a), 3.341(a). Consideration is given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In the present case, the Veteran has inconsistently reported his level of college education from between zero to three years. His prior work experience is reported primarily as a boiler technician, plumber, mason, sheet rocker, security guard and general laborer. He has generally reported being unemployed since 2001 due to pain and various impairments. However, he reported being unable to attend medical appointments as late as March 2008 due to his work schedule. VA treatment record, March 2008. For this reason, the Board previously resolved reasonable doubt in the Veteran’s favor and awarded TDIU effective as of the date following the day that he last reported being unable to attend appointments due to work. Board decision, August 2018. However, the Veteran appealed this decision and submitted new argument that the VA examiner misunderstood him when he stated that he was doing home repair and tile work that prevented him from attending medical appointments. Instead, the Veteran asserts that he was merely assisting his mother with renovations of the family home. Statements by Veteran and attorney, January 2020. The Board again resolves reasonable doubt in favor of the Veteran, and based on the newly submitted evidence finds that the Veteran has not engaged in substantially gainful employment during the present appeals period. As such, the question becomes whether the Veteran was capable of performing the physical and mental acts required by non-marginal civilian employment during the appeals period prior to March 6, 2008. To this end, the Board notes that where there is only one service-connected disability, or as here multiple disabilities of the same etiology that are considered a single disability for the purposes of a combined evaluation, that disability in combination must be rated at 60 percent or more to qualify for a TDIU rating on a schedular basis. 38 C.F.R. § 4.16(a). Despite the additional ratings and changed effective dates granted above, the Veteran does not achieve a 60 percent combined rating throughout the appellate period in this case. However, even when these numerical thresholds under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance, but in this case, the Director of the Compensation Service has already opined on the matter. See Bowling v. Principi, 15 Vet. App. 1 (2001); Administrative Review of Extraschedular TDIU, February 2018. Thus, the Board may now assign an extraschedular rating, and elects to do so here. A December 2019 private vocational assessment submitted by the Veteran reflects the opinion that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment since at least March 2002. Ultimately, the Board resolves reasonable doubt in the Veteran’s favor and finds that there is evidence that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities throughout the period on appeal, and a TDIU rating is thus warranted throughout the period on appeal, both on an initial extraschedular basis prior to meeting a combined 60 percent rating, and on a schedular basis thereafter. The appeal is granted. 7. An earlier effective date of October 11, 2001 for entitlement to Dependents' Educational Assistance benefits is granted. For the purposes of entitlement to DEA benefits under 38 U.S.C. Chapter 35, where a veteran was discharged from service under conditions other than dishonorable and has or had a permanent total service-connected disability, a program of education or special restorative training may be authorized for an eligible dependent. 38 C.F.R. §§ 3.807, 21.3020. As such, the issue of an earlier effective date for DEA benefits is inextricably intertwined with the claim for an earlier effective date for a TDIU rating adjudicated above. Accordingly, the new effective date assigned for the Veteran’s TDIU rating will also become the new effective date for DEA entitlement. The appeal is granted. Karen J. Alibrando Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDonald, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.