Citation Nr: 21063270 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 20-09 873 DATE: October 13, 2021 ORDER An effective date of June 28, 2017, for the award of service connection for residual lumbar spine scar is granted. A rating in excess of 40 percent for intervertebral disc syndrome (IVDS) status post spinal fusion and spondylolisthesis ("back disability") is denied. A rating in excess of 40 percent for right lower extremity radiculopathy with weakness is denied. A rating in excess of 40 percent for left lower extremity radiculopathy with weakness is denied. An initial compensable rating for residual lumbar spine scar is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran submitted an Intent to File a claim for compensation on June 28, 2017, and he filed a claim for increased ratings for his service-connected bilateral lower extremity radiculopathy on June 28, 2018, which was inferred to include a claim for service connection for the lumbar spine scar. 2. No formal or informal claim that could be construed as including a claim for service connection for the lumbar spine scar was received prior to June 28, 2017, that was not adjudicated in December 2006, September 2009, March 2010, February 2012, or May 2014 rating decisions. 3. For the entire period of appeal, the back disability is manifested by pain, 30 degrees of forward flexion, and a combined range of motion of 80 degrees, without evidence of unfavorable ankylosis of the thoracolumbar spine or any incapacitating episodes having a total duration of at least six weeks during the past 12 months. 4. For the entire period of appeal, the right lower extremity radiculopathy is manifested by moderate incomplete paralysis. 5. For the entire period of appeal, the left lower extremity radiculopathy is manifested by moderate incomplete paralysis. 6. For the entire period of appeal, the lumbar spine scar is stable and does not result in pain, limited motion, or other functional impairment. 7. The Veteran's disabilities meet the schedular criteria for consideration of a TDIU and preclude her from substantial and gainful employment. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of June 28, 2017, for the grant of service connection for residual lumbar spine scar are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155(a), 3.400. 2. The criteria for a rating in excess of 40 percent for the back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5010-5243. 3. The criteria for a rating in excess of 40 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating in excess of 40 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8520. 5. The criteria for an initial compensable rating for the lumbar spine scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. 6. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from March 1986 to October 1988. Earlier Effective Date In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The effective date of awards of claims granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. See Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of the claim of service connection for leukemia), aff'd sub nom. Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528, 532-33 (2008) (holding that the effective date for a grant of secondary service connection for depression with anxiety was the date of the secondary service connection claim, not the date of the claim for service connection for the primary heart condition). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). 1. Earlier effective date for service connection for back scar. The Veteran first submitted a claim for service connection for the back disability in June 2006. Service connection for the back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy were granted in a December 2006 rating decision, each with an effective date of June 21, 2006. The Veteran initiated appeals of the issues, and in September 2009, during the pendency of the appeals, the ratings for the bilateral lower extremity radiculopathy were both increased from 10 percent to 20 percent, effective June 21, 2006. The Veteran subsequently withdrew her appeals in writing in September 2009. In March 2010, the Veteran submitted a claim for a temporary total rating for convalescence based on a 2006 back surgery. In a March 2010 rating decision, a 100 percent rating was granted effective December 22, 2006, and a 10 percent rating was assigned from March 1, 2007. In February 2011, prior to the expiration of the one-year period after the Veteran was notified of the March 2010 rating decision, she submitted a claim for increased ratings for her back disability and bilateral lower extremity radiculopathy. In a February 2012 rating decision, the back disability rating was increased from 10 percent to 20 percent effective August 17, 2010, and was increased to 40 percent effective February 25, 2011; and the ratings for the bilateral lower extremity radiculopathy were both increased from 20 percent to 40 percent effective February 11, 2011. The Veteran did not appeal the February 2012 rating decision. In November 2012, the Veteran submitted a claim for entitlement to a TDIU, which was construed to include increased rating claims. In a May 2014 rating decision, the 40 percent ratings for the back disability and bilateral lower extremity radiculopathy were continued. The Veteran did not appeal the May 2014 rating decision. As such, these prior dates of claims are not the appropriate point from which to determine the effective date of an award unless a clear and unmistakable error (CUE) is found in one of these rating decisions. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision as free-standing claims for earlier effective dates vitiate the rule of finality). On June 28, 2017, the Veteran submitted an Intent to File a claim for compensation, and on June 28, 2018, she submitted an application for increased ratings for her service-connected bilateral lower extremity radiculopathy. In an August 2018 rating decision, service connection was granted for residual lumbar spine scar, effective August 10, 2018. The rating decision noted that although the Veteran had not specifically request service connection for this issue, it was inferred and granted based on an August 10, 2018, VA examination report indicating the existence of a surgical scar on the Veteran's posterior trunk. The Veteran subsequently appealed and asserted that she is entitled to an earlier effective date for the scar. The Board finds that an effective date of June 28, 2017, the date that VA received the Intent to File, is warranted. As discussed above, the effective date for the award of service connection is the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). To the extent that the Veteran had a diagnosis of a back scar prior to June 28, 2017, as discussed above, there are five prior rating decisions in December 2006, September 2009, March 2010, February 2012, and May 2014 that are final, and these are no longer appropriate points from which to determine an effective date. The Board has reviewed the record to determine whether any informal claim of service connection for a back scar was filed prior to June 28, 2017, that can be construed as an informal or formal claim for compensation benefits that was not adjudicated in the prior rating decisions in December 2006, September 2009, March 2010, February 2012, and May 2014, but finds that there is no such document in the claims file. See 38 C.F.R. §§ 3.151, 3.155; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for effective date earlier than the date on which the claim was received, impermissibly attempts to vitiate the rule of finality). Accordingly, under the applicable regulations, June 28, 2017, the date that the Intent to File was received, is the earliest assignable date for the award of service connection for the back scar. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The preponderance of the evidence is against the assignment of an effective date prior to June 28, 2017, for the award of service connection for the back scar. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to all these elements. Id. 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 it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitively related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59, which reads: "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Specifically, the Court held "that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." The Court also stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." Finally, arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint. Prior to February 7, 2021, when limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Effective February 7, 2021, under Diagnostic Code 5010, for post-traumatic arthritis, ratings are based on limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints effected, each rating shall be combined in accordance with § 4.25. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5010). 2. Increased rating for the back disability. The Veteran's back disability has been assigned a 40 percent rating for the entire period of appeal (from June 28, 2017) under Diagnostic Code 5010-5243, indicating that traumatic arthritis (Diagnostic Code 5010) is rated under the criteria for IVDS (Diagnostic Code 5243). The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243. Under these relevant provisions, 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 is rated at 10 percent. A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, 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 (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Prior to February 7, 2021, Diagnostic Code 5243 directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for IVDS provides that a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Effective February 7, 2021, Diagnostic Code 5243 is to be used only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic code 5242 is to be used for all other disc diagnoses. However, the rest of Diagnostic Code 5243 was not amended and still directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Board finds that rating in excess of 40 percent for the low back disability is not warranted at any point during the period of appeal. In an August 2018 VA back examination, the Veteran reported worsening radiculopathy in the bilateral lower extremities. She stated that between her back and legs, standing was painful, vacuuming and cleaning the house was difficult, and she could not take showers. During flare-ups, walking was so painful that she had to stay in bed with her legs extended, standing up was painful, and she had no range of motion. Range of motion measurements included 30 degrees of flexion, 10 degrees of extension, 10 degrees of left lateral flexion, 10 degrees of right lateral flexion, 10 degrees of left lateral rotation, and 10 degrees of right lateral rotation, with evidence of pain on all ranges of motion. There was no localized tenderness or pain on palpation, and no guarding or muscle spasms. Ranges of motion remained unchanged after repetitive-use testing with at least three repetitions, and taking into account the functional loss caused by pain and fatigue. The examiner indicated that the examination was being conducted during a flare-up. There was no ankylosis of the spine and no neurologic abnormalities other than bilateral radiculopathy. There was IVDS, which did not result in any required bed rest prescribed by a physician or treatment by a physician in the past 12 months. The examiner noted that there was objective evidence of pain when the back was used in non-weight bearing and on passive range of motion testing. VA and private treatment records during the period of appeal consistently note that the Veteran has back pain with a history of back surgery, but are silent for mention of ankylosis of the spine. In sum, the Board finds that for the entire period of appeal, the preponderance of the evidence is against the assignment of a disability evaluation in excess of 40 percent for the low back disability. For a 50 percent rating under the General Rating Formula, the evidence must show that there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237 5242. Here, there is no evidence of unfavorable ankylosis at any point during the period of appeal. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine (or the entire spine), is fixed in flexion or extension. It must also result 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. Rather, the August 2018 VA examiner concluded that the Veteran had a range of motion including 30 degrees of forward flexion and a combined range of motion of 80 degrees, and expressly noted that she did not have any ankylosis of the lumbar spine. As such, the Veteran's lumbar spine has not been found to be fixed in flexion or extension at any point during the period of appeal. A higher rating is also not warranted under Diagnostic Code 5243, for intervertebral disc syndrome (IVDS) based on incapacitating episodes, as the Veteran has never been found to have incapacitating episodes having a total duration of at least 6 weeks during the past 12 months to warrant a higher 60 percent rating. The Board has considered whether higher disability ratings are warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. As discussed above, however, the rating criteria are intended to take into account functional limitations, and therefore the provisions of 38 C.F.R. §§ 4.40 and 4.45 could not provide a basis for a higher evaluation. See 68 Fed. Reg. 51454 -5 (Aug. 27, 2003). In any event, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. The Board acknowledges that the Veteran's symptoms include pain and interference with sitting, standing, and/or weightbearing. However, even considering the effects of pain and the effects of flare-ups, the Veteran's lumbar spine was never noted to be fixed in flexion or extension. In other words, any additional limitation due to pain and/or flare-ups does not more nearly approximate a finding of favorable ankylosis of the entire thoracolumbar spine. Accordingly, the 40 percent rating contemplates the functional loss due to pain and less movement. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination at any point during the period of the appeal. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Consideration has also been given to the potential application of the other diagnostic codes for disabilities of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. However, the Board finds no basis upon which to assign higher evaluations, other than radiculopathy of the lower extremities, for which service connection has already been granted and will be discussed below. Finally, the Board recognizes the holding in Correia v. McDonald, 28 Vet. App. 158 (2016) as it pertains to VA examinations recording the results of range of motion testing for pain on both active and passive motion in weight-bearing and nonweight-bearing. However, the Veteran has been receiving the maximum schedular rating for motion loss for the lumbar spine for the entire period of appeal. Although the examinations do not provide range of motion measurements in weight-bearing and non-weight bearing and in active and passive motion, the Board finds that it may nonetheless proceed to adjudication of the claim. The range of motion necessary for a higher evaluation would be no range of motion, or ankylosis of the thoracolumbar spine. The Veteran has not alleged that her lumbar spine is fixed. Thus, a remand for an examination that complies with Correia would merely impose additional burdens on VA with no benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 541 (1991) (finding that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). As such, there is no evidence that an additional examination is in order. 3. Increased rating for right lower extremity radiculopathy. 4. Increased rating for left lower extremity radiculopathy. The Veteran's radiculopathy of the right lower extremity and radiculopathy of the left lower extremity are each assigned a 40 percent rating under Diagnostic Code 8520 for the entire period of appeal (from June 28, 2017). Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrant a 60 percent disability rating. Complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, warrants an 80 percent rating. See 38 C.F.R. § 4.121a, Diagnostic Code 8520. The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence. See 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. See 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. See 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 Board finds that a rating in excess of 40 percent is not warranted at any point during the period of appeal for the right lower extremity or left lower extremity radiculopathy. In an August 2018 VA back examination, the Veteran reported worsening radiculopathy in the bilateral lower extremities, including increase in numbness, pain when standing and walking, and difficulty climbing stairs. She used a cane regularly. During flare-ups, walking was so painful that she had to stay in bed with her legs extended, standing up was painful, and she had no range of motion in her back. The examiner indicated that the examination was being conducted during a flare-up. On examination, muscle strength was normal, there was no muscle atrophy, reflexes were normal, and sensation was decreased bilaterally. The Veteran had bilateral severe constant and intermittent pain, and bilateral moderate paresthesias and/or dysesthesias and numbness. The examiner indicated that the bilateral sciatic nerve roots were involved, and that the radiculopathy was moderate bilaterally. VA treatment records during the period of appeal note that the Veteran has bilateral lower extremity radiculopathy, but are silent for mention of the severity level of the radiculopathy. The Board finds that ratings in excess of 40 percent for the bilateral lower extremity radiculopathy are not warranted. For higher 60 percent ratings, the evidence must show severe incomplete paralysis with marked muscular atrophy. Here, the evidence shows that the bilateral radiculopathy is moderate, as noted by the August 2018 VA examiner. As such, the preponderance of the evidence indicates that the Veteran's right lower extremity radiculopathy and left lower extremity radiculopathy are of a severity no worse than moderate. Consideration has also been given to the potential application of the other diagnostic codes for disabilities of the peripheral nerves. See 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8540. However, the Board finds no basis upon which to assign higher evaluations at any point during the period of appeal. Diagnostic Codes 8520 through 8540 refer to paralysis of various lower extremity nerves. The Veteran has not been shown to have any paralysis of any other nerves, including her external popliteal, musculocutaneous, anterior tibial, internal popliteal, posterior tibial, anterior crural nerve, internal saphenous, obturator, external cutaneous, and ilio-inguinal nerves. Other diagnostic codes are therefore not applicable. As such, ratings in excess of 40 percent for the bilateral lower extremity radiculopathy are not warranted at any point during the period of the appeal. Because the preponderance of the evidence weighs against the claims, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 5. Increased rating for the lumbar spine scar. The Veteran has been assigned an initial noncompensable rating for her lumbar spine scar under Diagnostic Code 7805. Under this diagnostic code, scars are rated based on limitation of function of the part affected. In an August 2018 VA back examination, the Veteran was noted to have a 12 centimeter (cm) long and 0.4 cm wide scar on her back due to her lumbar spine fusion surgery in 2006. The scar was not pain or unstable, and did not have a total area equal to or greater than 39 square cm. VA treatment records during the period of appeal note that the Veteran is status post fusion surgery, but are silent for mention of any complaints or findings regarding the back scar. The Board finds that a compensable rating is not warranted at any point during the period of appeal. In evaluating the Diagnostic Codes potentially applicable to the Veteran's scars, the Board notes that Diagnostic Code 7800 does not apply because there is no indication that the scar has caused a characteristic of disfigurement (which includes scars five or more inches in length, at least one-quarter inch wide at widest part, surface contour elevated or depressed on palpation, adherent to underlying tissue, skin hypo- or hyper-pigmented in an area exceeding six square inches, skin texture abnormal in an area exceeding six square inches, underlying soft tissue missing in an area exceeding six square inches, and/or skin indurated and inflexible in an area exceeding six square inches). Diagnostic Code 7801 does not apply because there is no finding that the Veteran's scar is deep. Diagnostic Code 7802 does not apply because the Veteran's scar does not cover an area of 144 square inches or more. Diagnostic Code 7804 does not apply because the Veteran's scar is not unstable or painful. Thus, with Diagnostic Codes 7800 to 7804 excluded, Diagnostic Code 7805 applies, which contemplates the ratings of "other" scars, which are to be rated based on limitation of function of the part affected. The Veteran is not entitled to a compensable rating under this diagnostic code because there is no finding that she has suffered any functional impairment (such as limitation of motion) as a result of her scar, nor does the Veteran so contend. 6. Entitlement to a TDIU. Total disability meriting a 100 percent schedular rating exists "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Where the schedular disability rating is less than 100 percent, a total rating due to individual unemployability nonetheless may be assigned if a veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are satisfied. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For purposes of determining whether these threshold minimum rating requirements are met, disabilities affecting both upper or lower extremities or stemming from common etiology or single accident are considered as one, collective disability. "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. §§ 4.16 (a), 4.18. In this case, the Veteran's service-connected disabilities consist of major depressive disorder and opiod disorder (30 percent from April 2, 2014, and 100 percent from October 1, 2019); right lower extremity radiculopathy with weakness (20 percent from June 21, 2006, and 40 percent from February 11, 2011); left lower extremity radiculopathy with weakness (20 percent from June 21, 2006, and 40 percent from February 11, 2011); back disability (10 percent from June 21, 2006, 100 percent from December 22, 2006, 10 percent from March 1, 2007, 20 percent from August 17, 2010, and 40 percent from February 25, 2011); bilateral foot disability to include acquired pes cavus with all hammer toes, hallux valgus, and degenerative arthritis (30 percent from October 1, 2019); gastroesophageal reflux disease (GERD) (10 percent from December 5, 2014); tinnitus (10 percent from October 1, 2019); and lumbar spine scar (noncompensable from June 28, 2017). Her combined rating has been 70 percent or greater since February 11, 2011. Thus, the percentage requirements of § 4.16(a) are met. Resolution of the appeal of this claim therefore turns on whether the service-connected disabilities precluded the Veteran from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits him to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Regarding her education and employment history, the Veteran indicated in a TDIU application submitted in November 2012 that she had completed eighth grade, obtained her GED, and had training in cosmetology. She last worked in sales at a car dealership and fitness club. She last worked full time in 2004 and became too disabled to work in 2006. The Board finds that the Veteran's service-connected disabilities preclude her from securing and following substantially gainful employment consistent with her level of education and prior work experience and training. In a May 2011 VA peripheral nerves examination, the Veteran was noted to be working part-time as an esthetician, and had lost two weeks in the past 12 months due to her back condition. In November 2013 VA back and peripheral nerves examinations, the examiner indicated that the Veteran was best suited for a sedentary type job due to her back condition and lower extremity radiculopathy. In an April 2014 VA mental disorders examination, the Veteran reported that she last worked in 2009 in car sales, and had also worked in retail sales and as an aesthetician. In the April 2014 examination and a March 2016 VA mental disorders examination, the Veteran's mental disorder was noted to cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In an April 2018 VA back examination, the examiner indicated that the Veteran's back condition impacted her ability work, as it caused difficulty with walking, standing, doing household chores, and activities. She used a cane to walk for support due to back pain. In an October 2019 VA mental disorders examination, the Veteran reported that she had not worked since 2010. She took Wellbutrin twice per day, and indicated that she was "not doing well with depression." She was married, but they lived separately, she had no children, and had cut off her niece and sister "because of the way they treated me." The Veteran spent her day watching television in between doctor's appointment. She had no hobbies or interests, and some days she could not get out of bed to eat or go to the bathroom. She took care of her dog, including cooking food for the dog at times, but could not cook for herself. The examiner indicated that the Veteran's symptoms included depressed mood; anxiety; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective social relationships; difficulty in adapting ot stressful circumstances including work or a work like setting; and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The examiner concluded that the Veteran's mental disorder caused total occupational and social impairment. In a January 2020 VA foot conditions examination, the Veteran's bilateral foot disability was noted to impact the Veteran's ability work, as they caused disturbance of movement, and interference with walking, standing, lifting, and with prolonged standing. The examiner indicated that the Veteran was not working, but that the bilateral foot disability would cause 2-4 weeks of work time lost in 12 months. In an August 2020 statement, the Veteran's nice, R.F., indicated that the Veteran had to use a cane to walk, could not bend or lift anything, and did not have "much mobility at all." The Veteran often needed help with chores and errands, and even sitting was hard. She needed to keep her legs propped up to reduce swelling and pain, and wore slip-on shoes to avoid bending. R.F. had stayed in the Veteran's house when the Veteran was bathing in case she fell or something else happened. Some days, the Veteran was "down and out" about her situation and she did not lie talking or visiting with anyone. She also got angry easily and small things could "set her off." The Veteran submitted an evaluation by a private physician, Dr. M.B., in November 2020. After reviewing the claims file and "consulting with" the Veteran, Dr. M.B. opined that it is at least as likely as not that the combination of pain and limitations caused by the service-connected disabilities prevents the Veteran from being able to work. The Veteran would be unable to stand for more than 20 minutes without needing to lean on something due to her back pain and radiculopathy, she would be unable to walk for more than 10 minutes and assisted with a cane, and could not sit for longer than 30 minutes at a time. She could also not lift more than 10 pounds due to back pain. She would need to miss at least three days per month due t pain and limitations from her mental health symptoms, back pain, and radiculopathy, and would need more than one additional break per day in addition to the normal morning, lunch, and afternoon breaks. The Veteran's concentration, focus, and sleep were affected by her service-connected disabilities, and she was unable to maintain substantial gainful employment since at least June 28, 2017. In sum, there is probative evidence that establishes that the Veteran's service-connected disabilities cause significant occupational impairment. Specifically, the October 2019 VA mental health examiner and November 2020 opinion from Dr. R.B. indicate that the Veteran is unable to work due to her service-connected disabilities, and VA examiners since 2011 have noted at least some occupational impairment due to the service-connected back, lower extremity radiculopathy, mental disorder, and bilateral foot disability. As such, the Board finds that the evidence is at least in equipoise on whether the Veteran's service-connected disabilities prevent her from obtaining and maintaining employment. (Continued on the next page) Under the "benefit-of-the- doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Accordingly, on this record, the Board finds that the Veteran's service-connected disabilities prevent him from engaging in any substantially gainful employment. Thus, entitlement to a TDIU is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Nelson 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.