Citation Nr: 21004332 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 11-14 881 DATE: January 26, 2021 ORDER From August 4, 2009 to February 27, 2012, a rating of 20 percent for a low back disorder is granted. A rating in excess of 20 percent for a low back disorder is denied. An initial rating in excess of 10 percent for neuralgia of the right lower extremity is denied. Prior to November 1, 2017, a disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.   FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s back disorder approximated forward flexion of the spine greater than 30 degrees but not greater than 60 degrees when accounting for functional loss due to pain. 2. The Veteran’s back disorder has not approximated forward flexion of the spine limited to 30 degrees or less or shown ankylosis. 3. The Veteran’s neuralgia of the right lower extremity has been manifested by no worse than mild incomplete paralysis. 4. Prior to November 1, 2017, the Veteran’s service-connected disabilities did not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. From August 4, 2009 to February 27, 2012, the criteria for a 20 percent rating for a back disorder were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a rating in excess of 20 percent for a back disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. The criteria for an initial rating in excess of 10 percent for neuralgia of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8721. 4. Prior to November 1, 2017, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1964 to April 1967. He was awarded the Purple Heart. The case is on appeal from December 2009 and April 2012 rating decisions. In October 2016, the Veteran testified at a Board hearing. In October 2019, the Board remanded the claims for increased ratings for the Veteran’s service-connected disabilities of the low back and neuralgia of the right lower extremity. The Board also granted a TDIU from November 1, 2017. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The parties to this appeal entered into an August 2020 Joint Motion for Partial Remand (JMPR), and in an August 2020 Order, the Court granted the JMPR and remanded the issue of a TDIU prior to November 1, 2017 back to the Board. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his spouse and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 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. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. From August 4, 2009 to February 27, 2012, a rating in excess of 10 percent for the low back disorder and in excess of 20 percent thereafter. Specific Legal Criteria The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for 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 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 incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Analysis Following the August 2009 claim for an increased back rating, an October 2009 medical report was received from Dr. Spence. He indicated the Veteran has lumbar spine pain which is constant and aggravated with activity. The Veteran reported weakness, back spasms and flare-ups of the disability which occur a few times per week. Range of motion testing revealed forward flexion limited to 65 degrees and extension to 25 degrees. The examiner noted pain, fatigue, weakness and lack of endurance during testing. The examiner indicated the impact of the disorder on the Veteran’s occupation and daily activities include that he is limited to short distance ambulation and brief periods of standing due to pain. The Veteran was afforded a February 2012 VA examination in which the Veteran reported flare-ups, including weekly lumbar pain. Range of motion testing showed forward flexion limited to 60 degrees and extension limited to 10 degrees. There was no further reduction after repetitive testing. The examiner indicated the back disability has no impact on the Veteran’s ability to work. The Veteran’s spouse submitted a March 2012 statement in which she indicated the Veteran’s back pain is so severe that he has trouble riding in the car, sitting for long periods and pain while sleeping. She noted the back disability impacts the Veteran’s ability to lift things, walk and participate in certain activities. The Veteran was afforded a March 2012 VA examination in which the examiner indicated his back disability prevents him from bending, carrying, lifting and pushing. He stated the Veteran cannot mow the lawn but can put dishes in the dishwasher and vacuum the floor. He indicated the Veteran cannot do physical labor but can do “desk type work.” A May 2013 spinal x-ray revealed the Veteran has severe arthritis in his spine. Thereafter, an April 2014 medical record was received in which the examiner indicated the Veteran’s back is limited to 50 degrees of forward flexion and 10 degrees of extension. Dr. Spence reported the Veteran has tight, stabbing pain which is excruciating and constant. He noted the pain is worse at night and impacts the Veteran’s walking, dressing, bathing, mood, sexual function and sleep. His average pain was described as 9 out of 10. A later April 2014 record showed the Veteran’s lumbar spine was limited to 45 degrees and 5 degrees of extension. An August 2014 record indicated forward flexion limited to 50 degrees with constant pain, aggravated by being in a stationary position for long periods of time. An October 2016 report from Dr. Spence indicated as a result of his pain, the Veteran has difficulty with bending, prolonged standing and ambulation. The examiner stated if the Veteran were to work, he would miss work two to three times per month; he could not lift more than 10 pounds; he would have to get up and move around every 60 minutes for 10 minutes; and also, he would have pain and other symptoms severe enough to interfere with his attention and concentration. The Veteran was afforded an October 2016 Board hearing in which he reported he suffers incapacitating episodes where he is unable to get out of bed due to his back pain. He stated he has to avoid strenuous activities when he is incapacitated, however, he has not been prescribed bed rest for his back by a physician over the prior 12 months. He indicated motion helps to relieve his pain and at night his pain is much more severe since he is not moving. The claim was remanded by the Board in February 2017 for further development. The Veteran was afforded a July 2017 VA examination in which he reported flare-ups, including increased lumbar pain and right side sciatica. Range of motion testing revealed flexion limited to 50 degrees and extension to 10 degrees. The examiner indicated the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. He stated the Veteran has guarding or muscle spasm, not resulting in abnormal gait or spinal contour. No ankylosis was found. The examiner reported no evidence of pain with weight-bearing or nonweight-bearing, as well as no pain on passive range of motion. The claim was remanded by the Board in October 2019 and the Veteran subsequently underwent a December 2019 VA examination. He reported constant back pain with no flare-ups. Range of motion testing revealed flexion limited to 60 degrees with pain and stiffness on bending. There was evidence of pain with weight bearing and tenderness. No ankylosis was noted, as well as no pain on passive range of motion or with nonweight-bearing. The examiner indicated no intervertebral disc syndrome (IVDS). The Veteran was afforded a February 2020 VA examination in which he reported flare-ups, including severe flare-ups when he is active. He stated his flare-ups can last 2 to 3 days and are precipitated by activities such as moving furniture and standing too long. The Veteran reported his back disability prevents him from standing too long. Testing showed the Veteran’s forward flexion was limited to 70 degrees and extension was limited to 10 degrees. The examiner indicated pain causes functional loss and during flare-ups, his flexion is limited to 65 degrees. She noted the examination is medically consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner stated guarding or muscle spasm is present resulting in an abnormal gait or spinal contour. The examiner found no ankylosis of the spine and no IVDS. She noted the Veteran requires a cane regularly and his back interferes with his ability to work, including his ability to stand for prolonged periods, bend, lift, pull and carry items weighing more than 15 to 20 pounds. The examiner indicated there is evidence of pain with weight bearing, nonweight-bearing and with passive range of motion of the back. After a careful review of the evidence, the Board determines for the entire period on appeal that the Veteran’s back disability manifests forward flexion of the spine greater than 30 degrees but not greater than 60 degrees, when factoring in his functional loss due to pain and flare-ups. However, at no point does the back disability approximate forward flexion to 30 degrees or less or show ankylosis. Thus, an increased rating for the back disability to 20 percent, but not higher, is warranted from August 4, 2009. As noted, the October 2009 medical report from Dr. Spence showed flexion limited to 65 degrees with constant pain, weakness and spasms for the Veteran’s back. Further, the February 2012 VA examination testing found flexion limited to 60 degrees. The Board acknowledges that the October 2009 medical report found forward flexion limited to 65 degrees which tends to support the current 10 percent rating. However, in consideration of the Veteran’s pain, flare-ups and functional loss, the Board determines his back disability approximated forward flexion limited to 60 degrees, and thus, a 20 percent rating is supported from August 4, 2009. 38 C.F.R. § 4.71a, DC 5237. While an increased rating to 20 percent for the Veteran’s low back disability is warranted from August 4, 2009, a further increase in excess of 20 percent is not supported at any point during the appeal period. Following the February 2012 VA examination, an April 2014 medical record indicated the range of motion for back flexion is limited to 50 degrees. A later April 2014 record showed the Veteran’s lumbar spine flexion was limited to 45 degrees and an August 2014 record showed flexion limited to 50 degrees with constant pain. Additionally, the July 2017 VA examination results showed flexion limited to 50 degrees, the December 2019 VA examination revealed flexion limited to 60 degrees and the February 2020 VA examination found flexion limited to 70 degrees, reduced to 65 degrees due to flare-ups. While limited motion due to severe pain was found, as well as difficulty sleeping, walking, bending and lifting, such restrictions do not approximate forward flexion limited to 30 degrees or less and as noted, ankylosis has not been found. Further, the Veteran reported incapacitating episodes during the October 2016 Board hearing, however, there is no evidence of IVDS with acute signs and symptoms requiring bed rest prescribed by a physician. Thus, while an increased back rating to 20 percent is supported from August 4, 2009, a rating in excess of 20 percent is not suggested during the appeal period. 38 C.F.R. § 4.71a, DC 5237. Furthermore, there is insufficient evidence or an indication that the increase in severity occurred specifically within the one-year look back period. See 38 C.F.R. § 3.400(o)(2). Therefore, the August 4, 2009 date of claim is the proper effective date for the 20 percent rating. The Board finds the February 2020 VA examination complied with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Although earlier VA examinations were not entirely compliant in this regard, the information in the new VA examination supplied this information and shows that the severity level is similar and consistent throughout the appeal period. Thus, it cured any aspects of the duty to assist and provides sufficient evidence for deciding the claim. In sum, after resolving any reasonable doubt in the Veteran’s favor, an increased rating for the back disability to 20 percent is warranted from August 4, 2009. The preponderance of the evidence is against an even greater increased rating in excess of 20 percent for the appeal period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. An initial rating in excess of 10 percent for neuralgia of the right lower extremity. Specific Legal Criteria Under DC 8721, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis warrants a 40 percent rating. 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury; the relative impairment in motor function; trophic changes; or sensory disturbances. 38 C.F.R. § 4.120. Analysis An October 2009 medical record was submitted related to the Veteran’s service-connected low back disability. The examiner indicated the Veteran has numbness above the right foot. He noted the Veteran has whole back occasional weakness with dorsiflexion of the right foot. The examiner found lower extremity neuralgia, including numbness along the dorsum of the right foot, along with the right L5 dermatome. He further stated the Veteran has decreased pinprick sensation with sciatic nerve involvement. The December 2009 rating decision granted service connection for neuralgia of the right lower extremity and assigned a 10 percent rating. Thereafter, the Veteran’s representative submitted a May 2011 statement which indicated the Veteran’s right lower extremity disorder should be rated higher due to constant weakness, severe pain and moderately severe impairment. The Veteran was afforded a February 2012 VA examination in which the examiner indicated the Veteran has decreased right foot or toes sensation with no signs of symptoms of radiculopathy of the right lower extremity and no other neurologic abnormalities. The Veteran was afforded a March 2012 VA examination in which the examiner noted the Veteran has right leg radiculopathy. A medical record from April 2014 indicated the Veteran has tight, stabbing back pain which radiates down to the lumbar distribution. The examiner stated the Veteran has right thigh pain which causes an aching sensation and numbness on the top of his right foot. However, medical records from August 2014 and October 2014 showed the Veteran denied any numbness, tingling or weakness at that time. During the October 2016 hearing, the Veteran testified that his symptoms had worsened, including the numbness to his right foot and aching pain in his right thigh. The Veteran testified that he experiences pain in his right lower extremity when he walks and that he has fallen due to the disability. Following the February 2017 Board remand, the Veteran was afforded a July 2017 VA examination in which the examiner found mild intermittent pain and numbness of the right lower extremity. He noted decreased sensation in the right thigh, lower leg/ankle and foot/toes. The examiner indicated involvement of the sciatic nerve and right lower extremity radiculopathy mild in severity. Further, the examiner reported mild incomplete paralysis for the right lower extremity. As noted, the claim was remanded again by the Board in October 2019 and the Veteran was afforded a December 2019 VA examination in which no radiculopathy or neurologic abnormalities were found. The Veteran was afforded a February 2020 VA examination in which the examiner reported mild incomplete paralysis of the right femoral nerve. She found the Veteran has mild right lower extremity pain, burning and numbness. The examiner indicated the severity of the Veteran’s right lower extremity radiculopathy is mild. The examiner noted the right lower extremity disability interferes with the Veteran’s ability to stand, walk or sit for prolonged periods. She stated the Veteran’s neuropathy of the lower extremities also reduces feeling in his legs and feet causing an unsteady balance and gait and increasing his risk for falls. The Board determines an initial rating in excess of 10 percent is not warranted for the Veteran’s right lower extremity disorder. After a review of the evidence, including the VA examination reports during the appeal period, the Board finds the right lower extremity disability manifested consistent symptoms and impairment no worse than mild in severity. The initial October 2009 medical report indicated the Veteran has numbness above the right foot. The examiner noted weakness in dorsiflexion of the right foot and neuralgia, including numbness along the dorsum of the right foot. Medical evidence from February 2012 and April 2014 found decreased sensation of the right foot and right thigh pain which causes an aching sensation and numbness on the top of the Veteran’s right foot. Additionally, the July 2017 and February 2020 VA examiners indicated mild symptoms, including pain and numbness to the right lower extremity. While the Veteran experiences ongoing symptoms to his right lower extremity which are related to his back disability, such symptoms do not rise to the level of moderate in severity and an increased rating is not warranted under DC 8721. 38 C.F.R. § 4.124a. Thus, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for neuralgia of the right lower extremity. The benefit of the doubt is not for application and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. TDIU 3. A TDIU prior to November 1, 2017. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In addition, 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 disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision in the first instance before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The finding of the Director is a decision akin to the RO rather than an opinion to be used as evidence. Id. at 239. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran’s history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (citing 20 C.F.R. § 404.1567). For purposes of this decision, the Board uses the term “sedentary” to have the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). Facts As noted above, in October 2019 the Board granted the Veteran’s claim for a TDIU from November 1, 2017. With regard to the period prior to November 1, 2017, the Veteran appealed the decision to the Court and in August 2020, the parties entered into an August 2020 JMPR which was granted by the Court. The JMPR stated the Board must sufficiently explain the use of the term “sedentary” and how it factors into the Veteran’s overall disability picture and vocational history, including with regard to his ability to secure and follow substantially gainful employment. The Board was also directed to reexamine the evidence, including a March 2012 lay statement from the Veteran’s spouse and April 2014 private medical records. Prior to November 1, 2017, the Veteran is service connected for three conditions, a low back disorder, rated as 10 percent disabling from March 20, 1970 to August 3, 2009, and based on the current decision, rated as 20 percent disabling from August 4, 2009; neuralgia of the right lower extremity, rated as 10 percent disabling from October 29, 2009; and neuralgia of the left lower extremity, rated as 10 percent disabling from August 4, 2009 to December 22, 2010, and noncompensable from December 23, 2010. At the October 2016 Board hearing, the Veteran indicated that he is a high school graduate with one year of college and that he has not worked since 1992. He stated he was a police officer for 21 years and stopped working due to his low back disability. He asserted his low back and right lower extremity conditions prevented him from all substantially gainful employment. An October 2009 medical report was received from Dr. Spence which indicated the Veteran has lumbar spine pain which is constant and is aggravated with activity. The Veteran reported weakness, back spasms and flare-ups of the disability which occur a few times per week. Range of motion testing revealed forward flexion limited to 65 degrees and extension to 25 degrees. The examiner noted pain, fatigue, weakness and lack of endurance during testing. The examiner indicated the impact on the Veteran’s occupation and daily activities was that he is limited to short distance ambulation and brief periods of standing due to pain. The examiner also indicated the Veteran has numbness above the right foot. The examiner found lower extremity neuralgia, including numbness along the dorsum of the right foot along with the right L5 dermatome. He stated the Veteran has decreased pinprick sensation with sciatic nerve involvement. The Veteran was afforded a February 2012 VA examination in which the examiner indicated the back disability has no impact on the Veteran’s ability to work. The examiner reported flare-ups, including weekly lumbar pain. Range of motion testing showed forward flexion limited to 60 degrees and extension limited to 10 degrees. There was no further reduction after repetitive testing. The examiner indicated the Veteran has decreased right foot or toes sensation with no signs of symptoms of radiculopathy of the right lower extremity and no other neurologic abnormalities. The Veteran’s spouse submitted a March 2012 statement in which she indicated the Veteran’s back pain is so severe that he has trouble riding in the car, trouble sitting for long periods and pain while sleeping. She stated, “he cannot sit too long in any one place.” She noted the back disability impacts the Veteran’s ability to lift things, walk and participate in certain activities. The Veteran was afforded a March 2012 VA examination in which the examiner indicated he cannot do physical labor but can do “desk type work.” The examiner indicated his back disability prevents him from bending, carrying, lifting and pushing. He stated the Veteran cannot mow the lawn but can put dishes in the dishwasher and vacuum the floor. A May 2013 spinal x-ray revealed the Veteran has severe arthritis in his spine. Thereafter, an April 2014 medical record was received in which the examiner indicated the Veteran’s back is limited to 50 degrees of forward flexion and 10 degrees of extension. Dr. Spence reported the Veteran has tight, stabbing pain which is excruciating and constant. He noted the pain is worse at night and impacts the Veteran’s walking, dressing, bathing, mood, sexual function and sleep. His average pain was described as 9 out of 10. The Veteran reported his pain is aggravated with sitting, walking, lying in all positions and rising from sitting. The examiner stated the Veteran has right thigh pain which causes an aching sensation and numbness on the top of his right foot. A later April 2014 record showed the Veteran’s lumbar spine was limited to 45 degrees with less than 5 degrees of extension. An August 2014 record indicated forward flexion limited to 50 degrees with constant pain, aggravated by being in a stationary position for long periods of time. An October 2016 report from Dr. Spence indicated as a result of his pain, the Veteran has difficulty with bending, prolonged standing and ambulation. The examiner reported if the Veteran were to work, he would be absent from work two to three times per month. The examiner stated, “he could never lift or carry more than 10 lbs. and would have to get up and move around every 60 minutes for 10 minutes before being able to sit once again.” The examiner noted the Veteran would also periodically have pain or other symptoms severe enough to interfere with his attention and concentration. The Veteran testified during the October 2016 Board hearing that his low back and right lower extremity disabilities prevent him from working full-time. He stated it is a major distraction when he experiences severe pain, he is physically weak, and it would be difficult for him to concentrate. He reported that if he were working, he would be absent from work due to his low back disability and could not work more than one day per week. The Veteran stated his trouble with sitting, standing and walking due to his back disability would make employment difficult, as well as the trouble he would have concentrating due to his pain. The Veteran further testified that while working as a police officer, his position “was more administrative.” The claim for a TDIU was remanded by the Board in February 2017 and the Veteran was afforded a July 2017 VA examination. The examiner indicated the Veteran’s low back disability does not impact his ability to work. He similarly reported the Veteran’s service-connected right lower extremity disability has no impact on his ability to work. Thereafter, the Veteran was afforded a November 2017 VA examination for Parkinson’s disease in which the examiner indicated the Veteran’s Parkinson’s disease impacts his ability to work, including making it difficult for him to perform physical labor. The Veteran was afforded a January 2018 psychiatric examination in which he was diagnosed with insomnia secondary to Parkinson’s disease. The examiner indicated the Veteran has occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during periods of significant stress. He reported the Veteran experiences symptoms of anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, disturbance of motivation and mood and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. A January 2018 VA opinion indicated the Veteran’s Parkinson’s symptoms began initially with tremors and gait changes over the past several years, and his cognitive changes and occasional hallucinations are only recent symptoms. She stated his diagnosis is consistent with Parkinson’s disease and his complaint of a tremor in October 2017 is indicative of a Parkinson’s disease diagnosis. The Veteran was afforded an October 2018 VA examination in which the examiner indicated the Veteran’s Parkinson’s disease impacts his ability to work. He stated because of motor difficulties, including slowness of movement, shuffling gait and decreased balance, the Veteran would have difficulty working in a position that required prolonged walking, climbing and lifting. He noted the Veteran would also have difficulties in performing fine movements, such as typing. Thereafter, the Veteran was afforded a November 2018 VA psychiatric examination in which the examiner diagnosed him with PTSD and indicated he suffers occupational and social impairment with deficiencies in most areas. The examiner reported symptoms of chronic sleep impairment, impaired judgment, disturbance of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting and an inability to establish and maintain effective relationships. Analysis After on a careful review of the evidence, the Board finds that the Veteran’s service-connected disabilities did not prevent him from securing or maintaining all substantially gainful employment prior to November 1, 2017. While the Veteran’s service-connected low back and bilateral lower extremity disabilities caused occupational impairment, such disorders did not prevent the Veteran from securing and following all substantially gainful employment prior to November 1, 2017. The Board acknowledges that the Veteran has reported being unemployable since 1991, when he stopped working as a police officer. He further reported trouble with sitting, standing and walking due to his back disability which would make employment difficult, as well as the trouble he would have concentrating due to his pain. However, the evidence of record, including the medical evidence, suggests he was not prevented from working in all substantially gainful employment due to his service-connected disabilities until November 1, 2017. The Board determines the Veteran was capable of working in a sedentary-type occupation prior to November 1, 2017. As noted, the Board is using the term “sedentary employment” in its commonly held meaning of a non-physical, light-duty, office-type job which primarily involves sitting. See Withers, 30 Vet. App. at 139. The Veteran reported during the October 2016 Board hearing that he worked as a police officer for approximately 21 years and this involved “more administrative” tasks. Moreover, he stated, “being a policeman is mostly…writing reports and you’re in and out of the car.” While sedentary occupations require some limited ability to walk and stand, the medical evidence does not show that the Veteran’s mobility restrictions were so severe that he could not perform sedentary employment prior to November 1, 2017. The Board notes the Veteran experiences psychiatric symptoms which prevent all substantially gainful employment, including impaired judgment, disturbance of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting and an inability to establish and maintain effective relationships. However, such symptoms are related to his service-connected PTSD and Parkinson’s disease which were not service connected until November 1, 2017. (Continued on the next page)   The Board is sympathetic to the Veteran’s assertions regarding the impact his back and lower extremities had on him prior to November 1, 2017, both professionally and personally. However, those problems have been compensated by the schedular ratings for such disabilities, including the increase noted in the present decision. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while these disabilities caused some economic impairment, his assigned disability ratings contemplated his level of occupational impairment. A TDIU claim is not purely a medical question. Here, the Board has considered both the relevant medical evidence, as well as the non-medical evidence such as work history, education and lay evidence. In sum, the preponderance of the evidence supports that the Veteran has not been prevented from securing and following substantially gainful employment as a result of his service-connected disabilities prior to November 1, 2017. Therefore, the benefit-of-the-doubt rule is not applicable and a TDIU prior to November 1, 2017 is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Isaacs, 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.