Citation Nr: 21001898 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 10-03 192 DATE: January 12, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for a back disability is denied. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left lower extremity, prior to December 12, 2019, is denied. Entitlement to an increased rating in excess of 20 percent for radiculopathy of the left lower extremity, from December 12, 2019, is denied. Entitlement to an earlier effective date of September 15, 2005, but not earlier, for a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of evidence is against the finding that a back disability manifested with a range of motion limited to 30 degrees or less of flexion or ankylosis. 2. Prior to December 12, 2019, radiculopathy of the left lower extremity was manifested by symptoms of mild incomplete paralysis. 3. From December 12, 2019, left lower extremity radiculopathy was manifested by no more than moderate incomplete paralysis of the sciatic nerve. 4. From September 15, 2005, the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for a back disability, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 4.1, 4.2, 4.3, 4.21, 4.71(a), General Rating Formula for Diseases and Injuries of the Spine. 2. The criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity, prior to December 12, 2019, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity, from December 12, 2019, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for an effective date earlier of September 15, 2005, but not earlier, for the award of a TDIU 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 October 1975 to October 1977. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. When the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Formula for Rating 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The rating criteria use a General Rating Formula for Diseases and Injuries of the Spine for diagnostic codes 5235 to 5243 unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The General Rating Formula provides a schedule of ratings for spine disabilities 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. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a 30 percent rating. Forward flexion of the thoracolumbar spine greater than 20 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or the combined range of motion of the cervical spine not greater than 170 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 warrants a 20 percent rating. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 warrants a 10 percent rating. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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. 38 C.F.R. §§ 4.71, 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Each range of motion measurement is rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). 1. Entitlement to an increased rating in excess of 20 percent for a back disability The Veteran claims that his service-connected back disability is more severe than contemplated by a 20 percent rating. A review of the competent medical evidence of record, to include VA medical records and VA examinations, shows evidence of a decreased range of motion of forward flexion limited to, at worst, 50 degrees considering pain, with no evidence of ankylosis. Therefore, the Board finds that a higher rating for the Veteran’s back disability is not warranted under the General Rating Formula for Diseases and Injuries of the Spine, and the claim for increased rating, must be denied. Under the General Rating Formula, a higher rating of 40 percent is warranted if forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. During the claim period, the Veteran was provided several VA examinations assessing the nature and severity of the back disability in September 2005, April 2008, October 2014, November 2015, and December 2019. In the initial September 2005 VA examination, the Veteran was diagnosed with degenerative disk disease of the lumbar spine. The Veteran was noted to report constant back pain, with reports of decreased motion and flare-ups, to especially include after prolonged use to include walking and standing. On examination, range of motion was recorded as 60 degrees of forward flexion with evidence of pain, and repeat motion testing revealed no additional decreased in range. The examiner did not note any findings of ankylosis, or evidence of incapacitating episodes due to IVDS. Upon questioning, the Veteran noted that he could walk up to two miles, daily. At an April 2008 VA examination of the back disability, the Veteran was noted to report pain in the back, with reports of flare-ups and limited range of motion. On examination, range of motion was recorded to be limited to forward flexion of 75 degrees, with evidence of pain, and no decrease after repeat testing. The examination report noted no diagnosis of ankylosis, or incapacitating episodes due to IVDS. The Veteran was diagnosed with degenerative disc disease of the spine. An October 2014 VA back examination diagnosed the Veteran again with degenerative arthritis of the lumbar spine. The Veteran reported flare-ups and constant pain, with much more limited use, to include only being able to sit for an hour or stand for up for 30 minutes. On examination of the range of motion, forward flexion was noted to be limited to 65 degrees, with no further noted loss of motion after repeat testing or during flare-ups. The examination report noted IVDS, but no incapacitating episode, and no indication of ankylosis. At a November 2015 VA back examination, the Veteran made subjective complaints of pain and limited motion, to especially include after prolonged use. On examination, objective range of motion was forward flexion limited to 65 degrees, with pain noted on motion. Repeat motion testing found no further decrease in motion, and the Veteran was noted to report no flare-ups. Testing also noted no pain on weight bearing and no pain/tenderness on palpation. The examiner noted additional functional loss due to pain on motion, and specifically noted an inability bend, lift, or carry heavy objects. The report explicitly noted no ankylosis, or incapacitating episodes due to IVDS. Finally, in a December 2019 VA examination, the most recent examination, the Veteran again complained of loss of movement in his back, along with constant pain, which have progressed through the years. The Veteran noted that he could not stand longer than 5 to10 minutes, and could no longer walk for more than half- block; he did note, however, that he could sit “all day long” without his back bothering him. Upon physical examination the Veteran flexion was only limited to 80 degrees, with pain noted at the end points; repeat testing after three repetitions noted no further decreased in the range of motion. The examiner, however, did note that pain, fatigue, and lack of endurance significantly further limited functional ability, which the examiner described as limiting the Veteran to as low as 40 degrees of flexion. Additionally, the examiner noted the Veteran reported no flare-ups, and noted no ankylosis or incapacitating episodes due to IVDS. The Board finds that based on the competent and probative medical evidence that a higher rating in excess of 20 percent is not warranted. The next higher rating of 40 percent requires unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Similar to the examinations of record, there is no medical evidence that has shown a worsening condition commensurate to the criteria for a rating in excess of 20 percent, to include in records of VA treatment. The Board notes that the claims file contains contemporaneous VA medical records for the back disability throughout the claim period. However, review of those records does not show quantitative increase in severity of the back disability with regards to the objective criteria set out in the rating schedule requisite for the next higher rating. Specifically, the medical records do not demonstrate objective testing demonstrating limitation of flexion of 30 degrees or less, or any evidence of ankylosis of the Veteran’s lumbar spine. The Board finds that contemporaneous medical records during this claims period consistently show the Veteran’s range of motion, specifically flexion, for his back has been predominately in excess of 30 degrees, with no evidence of ankylosis or incapacitating episodes. Therefore, the Board finds that the preponderance of evidence remains against the finding that the Veteran’s back disability was of a sufficient severity as to warrant a higher rating, based on range of motion. Furthermore, those records do not show additional diagnoses of any conditions or symptoms which would warrant a rating higher than those noted in the VA examinations. Specifically, the evidence does not show that the Veteran has any form of ankylosis that would warrant a higher rating. While the Board acknowledges that in most VA examination and medical records, the Veteran’s ability to bend and lift things were significantly limited due to the functional loss from his back disability, to this end, the Veteran’s condition has never been so severe as to preclude movement of his spine akin to a finding of ankylosis. In fact, as the physical testing during VA examinations throughout the claims period show, the Veteran still has ample movement remaining despite his back disability. The Board notes that while both VA medical records note that the Veteran has back pain that limits mobility and activities, those records do not provide the degree or severity of the limitation such that any higher rating could be assigned. Therefore, the Board finds that the most persuasive evidence is the range of motion measured at the VA examinations of record. Consequently, with no competent evidence of a condition worse than that reported during the VA examinations during the relevant period, the Board finds that a rating in excess of 20 percent is not warranted, even considering functional loss due to flare-ups. The Board has considered, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the claims file does not contain sufficient evidence to support any additional increase in disability rating based on any functional loss due to flare-ups of pain. While the Veteran has reported experiencing pain and flare-ups, medical records and examinations show that pain did not result in functional loss. Specifically, during his most recent VA examination in December 2019, the VA examiner reported that even considering functional loss due to pain and fatigue, any additional limitation of motion that would equate to a limitation to 40 degrees of flexion, which is still in excess of the requisite criteria of 30 degrees of flexion, for the next higher rating. Therefore, the Board finds that no further increase in the Veteran’s current back rating is warranted due to any additional factors causing limitation of function. Furthermore, the Board has considered the Veteran’s consistent reports of pain, in conjunction with the examinations of record, in finding that the current disability ratings were warranted, despite a greater range of motion at the subsequent examination. The Board, in making the determination of the Veteran’s ratings has not ignored the Veteran’s statements concerning the symptomology of his back disability, with specific regard to pain and limitation of function. The Board finds that the Veteran is a lay person and is competent to report symptoms he observes, such as pain and fatigue. Layno v. Brown, 6 Vet. App. 465 (1994). Whether lay evidence is considered competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, an opinion concerning the relationship between the Veteran’s symptoms and a specific level of impairment of his back disability is of a medically complex nature. The diagnosis and analysis require expert medical training and the use of diagnostics which the Veteran has not demonstrated he possesses. Therefore, the Board finds that the Veteran is not competent provide an opinion as to whether the back disability warrants a rating in excess of disability rating he currently receives for those respective periods. The Board finds that objective evidence provided by the VA examiners of record to be more persuasive than the Veteran’s contention that a higher rating is warranted. Finally, the Board notes that a higher rating under Diagnostic Code 5243 for intervertebral disc syndrome is not warranted, as the preponderance of the evidence is against the finding that the Veteran’s intervertebral disc syndrome caused him to be prescribed bed rest. The Board notes that while VA examinations have noted intervertebral disc syndrome, the examiners have consistently noted no incapacitating episodes in the reports. Likewise, a review of the contemporaneous medical records also does not demonstrate any evidence that a physician prescribed bed rest as to constitute an incapacitating episode under the relevant Diagnostic Code being necessary during the claimed period. Finally, a close review of the Veteran’s own statements and reports regarding flare-ups and pain, does not render any self-described episodes of incapacitating episodes either. The Formula for Rating intervertebral disc syndrome Based on Incapacitating Episodes provides that an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Therefore, as there is no evidence of a prescription of bed rest that constitutes as an incapacitating episode, the Veteran’s back does not warrant a higher rating under this Diagnostic Code. Accordingly, the Board finds that the criteria for an increased rating in excess of 20 percent for a back disability have not been met. The Board finds the current disability ratings adequately contemplate the Veteran’s disability picture, and a higher rating is not warranted by the evidence of record, and the claim must be denied. The preponderance of the evidence is against the claim for a higher rating and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left lower extremity, prior to December 12, 2019 The Veteran claims that radiculopathy of the left lower extremity is more severe than the 10 percent rating assigned prior to December 12, 2019. The Board notes that the evidence, to include VA examinations and VA medical records, show that the Veteran’s left lower radiculopathy increased in severity on December 12, 2019. Therefore, as there is no evidence of an increase in the severity of the radiculopathy prior to that date, the Board finds for the staged period prior to December 12, 2019, a rating in excess of 10 percent is not warranted. Radiculopathy of the left lower extremity is rated under Diagnostic Code 8520 which provides that mild incomplete paralysis is rated 10 percent disabling. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term incomplete paralysis with peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement. When there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The Veteran attended several VA examinations during the relevant time period prior to December 12, 2019, in September 2005, April 2008, October 2014, August 2015, and November 2015; these, examinations included VA examinations for his back, that spoke to his neuropathy of the left lower extremity. The Board will address these in turn. In an initial examination for the Veteran’s back disability, in September 2005, the VA examiner diagnosed the Veteran with radiculopathy of the lower left extremity, sciatic nerve. During the examination, the Veteran was noted to report shooting pain down his left leg down to his foot that “comes and goes”. While the examiner noted that such radicular pain was active on the day of the examination, no additional symptoms were noted to include no evidence of numbness or weakness. In an April 2008 VA examination, the Veteran was specifically afforded a neurological disorders examination to assess the nature and severity of his service-connected sciatic disability of the left lower extremity. Upon examination, the examiner noted normal muscle tone and normal sensory examination. The examiner’s comment at the end of the report actually questioned the reason for such examination as all result returned normal. To this end, during the same examination session, the Veteran’s back/spine disability was also evaluated, and as part of that report, the examiner again noted normal sensory examination on both sides of the lower extremity, with slightly (4/5) lowered muscle strength on the left side, however, further details in the report noted normal muscle tone and no atrophy. The examination report provided no additional analysis regarding the Veteran’s radiculopathy. In an October 2014 VA examination, the Veteran was again afforded a neurological examination. During the examination, the Veteran again was noted to report pain shooting down his left side from his posterior down his leg. However, upon examination the examiner noted only pain and symptoms related to his right side, which is also service-connected. Specific to the left side, the examiner noted no symptoms upon examination returning normal result of sensory, strength, and reflex. The examination noted no evidence of atrophy or trophic changes related to the Veteran’s service-connected left lower extremity condition. In fact, the examination found no evidence of any affected nerves on the left side, resembling any symptoms related to his service-connected left side neuropathy. These results are confirmed by the back-examination report, completed concurrently, which also noted no radiculopathy symptoms of the left lower extremity. The Board notes that the exact same results were noted in the Veteran’s next August 2015 VA examination that assessed the nature and severity of his neuropathy of the left lower extremity. The results were nearly verbatim of the earlier October 2014 examination, in demonstrating no active symptoms related to the left side sciatic nerve, other than subjective reports of shooting pain. Likewise, in a November 2015 back examination, no radiculopathy was noted upon examination, bilaterally, however, subjective reports from the Veteran again noted shooting pain down the left side of the lower extremity. Other than the VA examinations, the contemporaneous VA medical records, and lay statements, shows that the Veteran’s radiculopathy of the left lower extremity was considered mild. The Board notes that a close review of the other VA medical records in the claims file shows no other evidence, that could constitute sufficient to warrant a higher rating, or demonstrate that the Veteran’s condition was moderate. While the Veteran complained of pain, the symptoms were wholly sensory and did not include additional symptomatology that would raise to the level of moderate. Therefore, a higher rating than the 10 percent for the left leg radiculopathy was not warranted prior to December 12, 2019, and the claim for increased rating for that period must be denied. 3. Entitlement to an increased rating in excess of 20 percent for radiculopathy of the left lower extremity, from December 12, 2019 The Board finds that a rating higher than 20 percent was not warranted for left lower extremity radiculopathy from December 12, 2019. The competent medical evidence of record, to include a December 2019 VA examination, shows that the left lower extremity was only productive of moderate incomplete paralysis of the sciatic nerve. Therefore, the claim for a rating in excess of 20 percent for this period must be denied. At his most recent December 2019 VA examination, which was conducted as part of the Veteran’s back examination, the Veteran’s left lower extremity radiculopathy was described as moderate. The VA examination report noted the Veteran reports of both severe paresthesias and numbness of both lower extremities, with subjective reports of intermittent pain. The examiner ultimately concluded that the Veteran’s radiculopathy of the left sciatic nerve was considered overall moderate in severity. Further testing noted normal muscle strength with no atrophy, normal sensory, and some hypoactive reflexes (+1). Again, the Board notes that a close review of the contemporaneous VA treatment record for this period reveals no additional information regarding a more severe condition, to include any indication of any extra-sensory symptoms of this left lower extremity. As such, the Board finds that from December 12, 2019, the left lower extremity radiculopathy manifested to no more than a moderate level of severity. The Veteran’s lay statements throughout the claims period show only complaints about intermittent shooting pains and some numbness and stiffness of lower extremities, starting from the lower back. The Board finds that even considering the Veteran’s lay statements and complaints, the VA examination of record provided a medically competent conclusion that the Veteran’s condition is only considered moderate, which the Board finds to highly probative of the severity of the Veteran’s radiculopathy. The evidence shows that the neurologic disability is only sensory and thus should be rated mild, or at most, moderate in degree. Consequently, as neither examiner concluded that the disability amounted to a moderately severe condition, and the evidence does not show diminished strength or reflexes, or any muscle atrophy, the Board finds that a rating higher than 20 percent rating is not warranted, and the claim for increased rating for this relevant period, must be denied. 4. Entitlement to an earlier effective date of September 15, 2005, but not earlier, for a total disability rating based on individual unemployability (TDIU) The Veteran seeks an effective date earlier than May 10, 2008, for the award of a TDIU. Specifically, the Veteran contends that he should be granted a TDIU from the date of the claim for increased rating for his back disability. The Board finds that a close review of the evidence of record surrounding that time period between October 14, 2005, to May 10, 2008, demonstrates that the Veteran’s service-connected disabilities were not substantially different or more severe than the period after May 10, 2008, and that such disabilities, did prevent the Veteran from obtaining and sustaining gainful employment. As such, an earlier effective date of September 15, 2005, but not earlier, for the grant of a TDIU is warranted. The Board notes that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Rice v. Shinseki, 22 Vet. App. 447 (2009), Dalton v. Nicholson, 21, Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367 (1991). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o). Thus, the effective date of an award of increased compensation may be assigned up to one year prior to the date of claim, if an ascertainable increase in disability is established during that period. See Hazan v. Gober, 10 Vet. App. 511 (1992); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that “the relevant temporal focus” in an increased rating claim is on “the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim”). With respect to the date of claim, as noted, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that when an appellant appeals the initial disability rating for a service-connected disability and also submits evidence of unemployability, then part and parcel of that claim for an increased rating is the issue of whether a total rating based on individual unemployability as a result of that disability is warranted. Thus, as the issue of entitlement to TDIU in the context of an increased rating claim may be co-extensive with that claim in terms of the time period under review, the effective date of TDIU may be as early as the effective date applicable to the increased rating claim under 38 C.F.R. § 3.400(o). See Rice, 22 Vet. App. at 454. Here, the Board recognizes the Veteran’s claim for a TDIU was raised part and parcel of his claim for an increased rating for his back disability, which has been ongoing since his initial application in August 2005. Rice v. Shinseki, 22 Vet. App. 447 (2009). To this end, the Veteran formally raised his claim on the record for a TDIU through his filing of a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability in September 2014. The RO granted the Veteran service connection for a TDIU, in a December 2016 rating decision, and assigned an effective date of May 10, 2008, the day after the Veteran was last noted to have worked. Therefore, as the Board and VA recognizes that such the initial date of claim for increased rating of August 2005, the effective date of the granted TDIU may be eligible to be effective as early as that date. See Rice, 22 Vet. App. at 454; [emphasis added]. As a preliminary matter, the Board notes that in assigned an effective date for the Veteran’s grant of a TDIU, the RO’s decision ostensibly relied on the determination made by the Veteran’s Social Security Administration (SSA) disability award determination. Here, in an August 12, 2010 determination, the SSA granted disability award to the Veteran based on his back and psychiatric disabilities rendering him unable to obtain gainful employment. In that determination, the SSA determined that the effective date of such award was May 9, 2008, noting that such date was when the Veteran qualified as disabled under SSA regulations and law. However, a close review of the materials in which SSA collected, analyzed, and relied on, to include vocational reports, work history documentation, and medical records, does not show that May 9, 2008, is a date of any significance with regards to the Veteran’s employment or disability. A close review of the medical records does not demonstrate any significant developments or changes in the Veteran’s disabilities in or around May 2008. Likewise, the evidence actually shows that the Veteran worked various temporary jobs in fast food and delivery until September 2008. Therefore, the Board finds that such determination of May 9, 2008, being the date in which the onset of the Veteran’s disabilities precluded him from gainful employment to be counter to the evidence of record. More plausibly, however, is that the SSA decision that set such effective date was not set based on the medical or employment record of the Veteran, but in fact based on when the Veteran was last denied his previous application for SSA benefits. Administrative documents of record reveals that the Veteran was previously denied SSA benefit in a May 8, 2008 decision notice, a day prior to the current effective date for grant of benefit. Consequently, as the latter SSA grant was not based on the medical or employment evidence, the Board must find that such date of May 9, 2008, is an arbitrary date set by the SSA, and should have no bearing or probative value, when deciding VA benefits for a TDIU. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); Martin v. Brown, 4 Vet. App, 136 140 (1993). In other words, as the RO based the Veteran’s effective date for TDIU on an arbitrary nonbinding decision from the SSA, such effective date cannot stand, and an earlier effective date is warranted. Here, the basic facts regarding the Veteran’s employment history is undisputed. In the early part of the Veteran’s career in the late 1980’s to the 1990’s, the Veteran worked as a computer programmer, where he claims to have “burnt out.” Shortly after that, the Veteran started working as a truck driver, and was employed as such for nearly 15 years, until he retired in 2005, due in part, as he has asserted, to his back disability, and those associated disabilities, to include radiculopathy of his bilateral lower extremities. After his retirement, the Veteran has noted to have worked in several temporary, hourly jobs, in which has never lasted more than a few months. In his application for SSA benefits, the Veteran noted that he worked at several fast food restaurant such as McDonalds, Domino’s, Wendy’s, and Dairy Queen, between 2006 and 2008. Finally, he worked as a package and handling employee with UPS for a month from August to September 2008. With regards to education, the Veteran completed a computer science associates degree (two year) in the 1980’s. Finally, email correspondence during the claims period seem to indicate that the Veteran was incarcerated in early 2008. With regards to jurisdiction, the Board notes that the Veteran’s claim for a TDIU on an extraschedular basis has already been previously considered by the Director of Compensation and Pension Benefits, in the first instance, and denied in an administrative decision in March 2015. As such, the Board has appropriate jurisdiction to consider and grant benefits for a TDIU based on an extrasaccular basis. Here, the evidence of record, to explicitly include the available SSA records reveal that the Veteran was gainfully employed as a truck driver until September 15, 2005, when he retired because he was no longer able to do the job, due to his back disability. Specifically, the Veteran noted, on several occasion, to include during VA examinations for his back, that his inability to lift, carry, or bend, due to his back disability, prevent him from continuing his job as a truck driver. The Board finds that, as such, September 15, 2005, is the proper effective date for the grant of a TDIU. To this end, the Board notes that prior to September 15, 2005, the Veteran was gainfully employed as a truck driver, with a nearly 15-year career, this is not in dispute. As such, regardless of his service-connected disability at that time, where the evidence establishes that a Veteran is gainfully employed on a full-time basis, a TDIU cannot be granted during this period as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994); see also Faust v. West, 13 Vet. App. 342 (2000); 38 C.F.R. § 4.16(b) (reflecting that, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled). Therefore, a TDIU prior to September 15, 2005 would be improper. With regards to the time from September 15, 2005, the Board finds that while there is evidence that the Veteran did hold a few jobs during this time period between September 2005 and May 2008, such employment is found to be transient and not considered substantive full-time gainful employment, as contemplated by the law. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be 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. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. The Board finds that those positions held by the Veteran, after he left his career as a truck driver after 2005, are the paradigm of marginal employment. Here, not only were these positions paying, essentially, minimum wage, and not a “living wage,” the Veteran was unable to hold onto any of these job for more than a few months. Again, looking at the SSA reports and application completed by the Veteran, demonstrates that such jobs were temporary and marginal work. As such, considering these facts, to include the duration the Veteran held these jobs, the unskilled and temporary nature of these positions of food service, mopping, and cleaning, and the minimum pay, the Board finds that such that jobs are not consider to be gainful employment, and does not preclude the grant of a TDIU. Therefore accepting that the Veteran was not employed during the relevant time period, the Board must determine whether the Veteran’s underlying service-connected disabilities precluded him from obtaining gainful employment; and to this end, the Board finds the preponderance of the evidence to be for the Veteran. Here, the Board finds that the evidence, both medically and vocationally is clear that the Veteran had to retire from his job as a truck driver due to his back disability. The Veteran’s inability to bend, lift, or carry heavy things, due to his back disability, is confirmed by the medical evidence, and therefore, precluded the Veteran from remaining a trucker. Indeed, even the May 2008 SSA determination, which denied the Veteran’s disability award, made a finding, based on a vocational expert opinion that the Veteran was no longer able to perform his job as a trucker. The Board agrees with such findings by the SSA and vocational expert regarding physical labor, as VA examinations and medical evidence during this claims period show increased pain due to prolonged use such as standing and sitting, to include functional loss such as bending and lifting. As such, the Board must find that preponderance of evidence does show that the Veteran was precluded from physical labor due to his back disability. Here, the Board finds that such physical restriction allows for only light labor work and sedentary work. Considering the Veteran’s background, education, and experience, coupled with the Veteran’s psychiatric disability, the Board must find that such sedentary work and/or light labor is not possible. While the Board recognizes that the Veteran was previous a computer programmer in the 1980’s, more than two decades had eclipsed since that time, and with only two years of college, and no exposure or experience in such field, the Board must find that a sedentary position would be precluded due simply on the Veteran’s education and experience. The Board additionally has also considered the Veteran’s service-connected psychiatric disability, which is rated 50 percent during the relevant time period. The Board notes that evidenced by his inability to sustain even his menial positions in fast-food during this time period, the Veteran’s psychiatric disability is shown to affect the Veteran’s ability to work with others and sustain any type of employment for longer than a few months. With symptoms such as severe depression, irritability, and issues with concentration, collectively, the Board finds that such effects on work efficiency and productivity would preclude him from even sedentary positions. In this regard the Board does note that in August 2007, the Veteran was incarcerated due to aggravated assault. Consequently, the Board must find that the evidence of record indicates that the Veteran could not sustain, full-time employment from September 15, 2005, through May 10, 2008, and as the evidence suggests that either that his actual employment was otherwise marginal in nature, or that he could not actually sustain a job, the Board finds that the preponderance of the evidence shows that Veteran was not able to maintain substantially gainful employment from September 15, 2005. See 38 C.F.R. § 4.16; Moore, 1 Vet. App. 356. The evidence thus establishes that the Veteran’s service-connected disabilities precluded her from securing or following a substantially gainful occupation from September 15, 2005. Accordingly, the benefit-of-the-doubt rule applies, and entitlement to an effective date from September 15, 2005, but not earlier, for the award of a TDIU is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.