Citation Nr: 21066484 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-10 776 DATE: November 1, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for service-connected radiculopathy of the left femoral nerve is denied. Entitlement to an evaluation in excess of 20 percent for service-connected radiculopathy of the right femoral nerve is denied. Entitlement to an evaluation in excess of 20 percent prior to July 23, 2020, and in excess of 40 percent thereafter for service-connected peripheral neuropathy of the left sciatic nerve is denied. Entitlement to a compensable evaluation for service-connected surgical scar associated with degenerative disc disease with lumbar stenosis is denied. Entitlement to an earlier effective date of March 21, 2016 for service-connected radiculopathy of the left femoral nerve is granted. Entitlement to an earlier effective date of March 21, 2016 for service-connected radiculopathy of the right femoral nerve is granted. Entitlement to an earlier effective date of March 21, 2016 for service-connected peripheral neuropathy of the left sciatic nerve is granted. Entitlement to an effective date earlier than January 12, 2012 for service-connected surgical scar associated with degenerative disc disease with lumbar stenosis is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) from October 30, 2012 to August 23, 2016 is granted. REMANDED Entitlement to a TDIU prior to October 30, 2012 is remanded. FINDINGS OF FACT 1. The service-connected radiculopathy of the bilateral femoral nerves was not manifest by severe incomplete paralysis or complete paralysis. 2. The service-connected peripheral neuropathy of the left sciatic nerve was not manifest by moderately severe or severe incomplete paralysis, or complete paralysis prior to July 23, 2020. 3. The service-connected peripheral neuropathy of the left sciatic nerve was not manifest by severe incomplete paralysis, or complete paralysis from July 23, 2020. 4. The service-connected surgical scar was not painful or unstable, and did not cover an area or areas of 144 square inches or greater. 5. The symptoms of the radiculopathy of the bilateral femoral nerve and peripheral neuropathy of the left sciatic nerve were present March 21, 2016. 6. The service-connected surgical scar resulted from surgery in January 2012, and did not exist prior. 7. From October 30, 2012 to August 23, 2016, the various service-connected, acting in concert, rendered the Veteran incapable of securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent for service-connected radiculopathy of the bilateral femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8526. 2. The criteria for entitlement to an evaluation in excess of 20 percent prior to July 23, 2020, and in excess of 40 percent thereafter for service-connected peripheral neuropathy of the left sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. The criteria for entitlement to a compensable evaluation for service-connected surgical scar associated with degenerative disc disease with lumbar stenosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 7805. 4. The criteria for entitlement to an earlier effective date of March 21, 2016 for service-connected radiculopathy of the bilateral femoral nerve, and the peripheral neuropathy of the left sciatic nerve have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.102, 3.400. 5. The criteria for entitlement to an effective date earlier than January 12, 2012 for service-connected surgical scar associated with degenerative disc disease with lumbar stenosis have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.102, 3.400. 6. The criteria for entitlement to a TDIU from October 30, 2012 to August 23, 2016 have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to November 1980, and from November 1989 to May 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). The issue of TDIU was previously before the Board in October 2018, March and May 2020, and May 2021, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The additional issues on appeal, for which the Veteran has not requested a hearing, were subsequently certified to the Board in May 2020 and have been merged with the previously-remanded issue in the interest of judicial efficiency. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation 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 such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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 any 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, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Entitlement to an evaluation in excess of 20 percent for service-connected peripheral neuropathy of the left femoral nerve 2. Entitlement to an evaluation in excess of 20 percent for service-connected peripheral neuropathy of the right femoral nerve 3. Entitlement to an evaluation in excess of 20 percent prior to July 23, 2020, and in excess of 40 percent thereafter for service-connected peripheral neuropathy of the left sciatic nerve The Veteran filed an increased rating claim for their lumbar spine disability in April 2011, ultimately appealing it to the Board. During the pendency of the appeal, radiculopathy of the femoral nerve bilaterally and radiculopathy of the left sciatic nerve was found during an August 2016 VA examination, and were granted service connection, each with a 20 percent evaluation. Radiculopathy of the right sciatic nerve has been service-connected since October 2008, and is not presently on appeal. In an August 2020 rating decision, the RO recharacterized the radiculopathy of the left sciatic nerve as peripheral neuropathy of the left sciatic nerve, and granted an evaluation of 40 percent effective July 23, 2020. The Veteran's service-connected peripheral neuropathy of the left sciatic nerve is rated under DC 8520, which warrants disability ratings of 10, 20, and 40 percent respectively for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve, manifested by foot dangle and drop, no active movement possible of the muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The Veteran's service-connected radiculopathy of the bilateral femoral nerve is rated under DC 8526, which warrants disability ratings of 10, 20, and 30 percent respectively for mild, moderate, and severe incomplete paralysis of the femoral nerve. A rating of 40 percent is warranted for complete paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8526. 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 given with each 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. 38 C.F.R. § 4.124a, note preceding Diagnostic Code 8510. The Board notes that "Mild," as relevant to a physical condition, is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed March 18, 2020). "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. The term "severe" is used throughout the rating schedule, including in Diagnostic Codes 8520 and 8526, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Codes 8520 and 8526, which establishes a successive, tiered rating structure, it represents the highest or most extreme level of incomplete paralysis. The Veteran underwent a VA examination for the lumbar spine in August 2016. Muscle strength testing showed active movement against some resistance on all movements bilaterally. There was no muscle atrophy. Reflex testing showed that the knee and ankle were hypoactive bilaterally. Sensory testing showed decreased sensation in the upper anterior thigh bilaterally, but normal sensation in the thigh/knee, lower leg/ankle, and foot/toes bilaterally. The examiner noted that the Veteran was unable to perform the straight leg raising test. The Veteran reported mild constant pain bilaterally, moderate intermittent pain bilaterally, moderate paresthesias and/or dysesthesias bilaterally, and moderate numbness bilaterally. The examiner indicated that the nerve roots involved were the sciatic and femoral nerves bilaterally, and opined that they were each of moderate severity. May 2019 VA treatment records note the Veteran's complaints of radiating pain in the leg, exacerbated by standing, walking, and alleviated by position change, relaxation, and medication. The Veteran reported pain at 7 out of 10, and the examiner noted limping. However, this entry does not indicate which lower extremity these refers to, or whether it was both. The Veteran underwent a VA examination for the lumbar spine in September 2019. Muscle strength testing showed normal strength bilaterally, and that there was no muscle atrophy. Reflex testing showed that the knees and ankle were hypoactive bilaterally. Sensory testing showed normal sensation in all parts of the lower extremities bilaterally. Straight leg raising test was positive in the right lower extremity, and negative in the left lower extremity. The Veteran reported mild constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity, and severe constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in the right lower extremity. The examiner indicated that there was involvement of the sciatic nerve bilaterally, but not the femoral nerve, and evaluated the right lower extremity as severe, and the left lower extremity as mild. April 2020 VA treatment records note the Veteran's complaints of leg pain, worse sitting and lying, and better while walking, but still with pain. The Veteran reported that the pain was getting worse, and that the pain was not clearly in the joints or muscles, and not exactly sciatica like either. In July 2020, the Veteran underwent a VA examination for peripheral neuropathy. Muscle strength testing showed active movement against some resistance on all movements in the bilateral lower extremities. Deep tendon reflexes were shown to be normal in the upper anterior thigh, but decreased in the thigh/knee, lower leg/ankle, and foot/toes bilaterally. The examiner noted that the Veteran had an antalgic gait using a cane for support, as a result of the sciatica and lumbar spine stenosis. The examiner opined there was moderately severe incomplete paralysis of the sciatic nerve bilaterally, but found no involvement of the femoral nerve bilaterally. For the bilateral radiculopathy of the femoral nerves, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for the entire appeal period. Involvement of the femoral nerve was only found during the August 2016 VA examination. That examination found slightly diminished strength, hypoactive reflexes, decreased sensation in the upper anterior thigh, and that the Veteran was unable to perform the straight leg raising test bilaterally. Further, the Veteran reported only mild to moderate pain, paresthesias/dysesthesias, and numbness, and the examiner opined that the symptoms were of moderate severity. While VA treatment records note the Veteran's radicular symptoms, they are not specific to whether they refer to the sciatic or femoral nerves. Essentially, these symptoms are limited in scope and represent no more than moderate incomplete paralysis of the bilateral femoral nerves. As such, ratings in excess of 20 percent are not warranted, and the claims must be denied. 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. For the peripheral neuropathy of the left sciatic nerve, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent prior to July 23, 2020, and in excess of 40 percent thereafter. Involvement of the left sciatic nerve was found during the August 2016, September 2019, and July 2020 VA examinations. The results of the August 2016 examination are reported in the preceding paragraph. The September 2019 examination found normal strength, hypoactive reflexes, normal sensation, and negative straight leg raising test results. Further, the Veteran only reported mild pain, paresthesias/dysesthesias, and numbness, and the examiner opined that the symptoms were of mild severity. Essentially, these symptoms are limited in scope and represent no more than moderate incomplete paralysis of the peripheral neuropathy of the left sciatic nerve. As such, an evaluation in excess of 20 percent for the period prior to July 23, 2020 is not warranted, and the claim must be denied. 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. The July 2020 examination found slightly diminished strength, normal reflexes, and decreased sensation in the left sciatic nerve. The examiner opined that the symptoms represented moderately severe incomplete paralysis of the left sciatic nerve. For the period from July 23, 2020, the Veteran is already in receipt of a 40 percent evaluation. At no point during the appeal period was the peripheral neuropathy of the left sciatic nerve shown to manifest as severe incomplete paralysis with marked muscle atrophy or complete paralysis. As such, an evaluation in excess of 40 percent for the period from July 23, 2020 is not warranted, and the claim must be denied. 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. Entitlement to a compensable evaluation for service-connected surgical scar associated with degenerative disc disease with lumbar stenosis The Veteran filed for an increased rating claim for their service-connected lumbar spine disability in April 2011, ultimately appealing it to the Board. During the pendency of the appeal, a surgical scar was noted during an August 2016 VA examination, and in a September 2016 rating decision service connection was granted with a noncompensable evaluation effective January 12, 2012. The Veteran's service-connected surgical scar associated with the lumbar spine disability is rated under DC 7805 for other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, DC 7805 was not changed by the August 13, 2018, amendments. DC 7805 instructs that any disabling effect(s) not considered in a rating provided under DC 7800-04 under an appropriate DC. An August 2016 VA examination noted a scar measuring .3 by .6 centimeters, and that it was not painful or unstable. A September 2019 VA examination noted a scar measuring 1 by 1 centimeters, and that it was not painful or unstable. There is no other medical evidence in significant conflict with the above findings, and the Veteran has provided no additional evidence or argument as to the severity of the surgical scar. As such, the Board finds the evidence against the assignment of a compensable rating for the Veteran's scar under Diagnostic Code 7805 as there is no evidence of disabling effect(s) not considered in a rating provided under DCs 7800-04. Further, the Veteran's scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's scar is not unstable or painful. Therefore, DC 7800, 7801, 7802, and 7804 are inapplicable. Thus, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for his left chest scar. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Regarding all of the above claims, the Board is sympathetic to the Veteran's contentions that their disabilities are worse than currently evaluated and those assertions have been considered. The Veteran is competent to report symptoms as they come to them through their senses. Layno v. Brown, 6 Vet. App. 465 (1994). They are not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. EFFECTIVE DATE Generally, the effective date of an award of disability compensation based on an original claim shall 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. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before they actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of 38 C.F.R. § 3.160, appropriate to the benefit sought within 1 year of receipt of an intent to file a claim VA will consider the complete claim form filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). 1. Entitlement to an earlier effective date of March 21, 2016 for service-connected peripheral neuropathy of the left femoral nerve 2. Entitlement to an earlier effective date of March 21, 2016 for service-connected peripheral neuropathy of the right femoral nerve 3. Entitlement to an earlier effective date of March 21, 2016 for service-connected peripheral neuropathy of the left sciatic nerve As noted above, the Veteran filed an increased rating claim for their lumbar spine disability in April 2011, ultimately appealing it to the Board. During the pendency of the appeal, radiculopathy of the bilateral femoral nerve and radiculopathy of the left sciatic nerve were found during an August 2016 VA examination, and were granted service connection effective the date of the examination, August 1, 2016. And again, although peripheral neuropathy of the right sciatic nerve is service-connected, it is not presently on appeal. An August 2011 VA examination noted radiculopathy of the right lower extremity. Although it did not specify whether this involved the femoral or sciatic nerves, the Veteran was already in receipt of service connection for the right sciatic nerve by this point. January 2012 VA treatment records note that the Veteran has L5 radiculopathy, but provides no further information. February and March 2012 VA treatment records note the Veteran's complaints of right radiating leg pain, but do not specify the femoral or sciatic nerves. June 2012 VA treatment records note radiating leg pain, but does not specify which leg. August 2013 VA treatment records note that the Veteran was in receipt of a 20 percent evaluation for paralysis of the sciatic nerve. VA treatment records from March 21, 2016 note the first instance of bilateral radicular symptoms. There, the Veteran reported pain radiating to the bilateral buttocks and down the legs to the feet and toes, with numbness and tingling in the legs. In April 2020, the RO obtained a retrospective opinion to address the functional loss of their service-connected lumbar spine disability prior to 2016. In this opinion, the examiner opined that the radiculopathy symptoms had begun during this period, but that they were reduced. The examiner noted the service-connected radiculopathy of the sciatic nerve of the right lower extremity in January 2012, which is again not on appeal. The Board resolves reasonable doubt in the Veteran's favor, and finds that the report in March 2016 of bilateral radicular symptoms just five months prior to their official diagnosis and which clearly shows bilateral involvement of an extensive nature gives rise to an earlier effective date prior to the date of the August 2016 examination. Although there are notes of radicular symptoms prior to March 2016, they either refer specifically to the already service-connected peripheral neuropathy of the right sciatic nerve, or are too vague in description to attribute them to anything more than this already service-connected nerve. Accordingly, the Board grants an effective date of March 21, 2016 for the service-connected radiculopathy of the bilateral femoral nerve, and the service-connected peripheral neuropathy of the left sciatic nerve. 4. Entitlement to an earlier effective date for service-connected surgical scar associated with degenerative disc disease with lumbar stenosis As noted above, the Veteran filed for an increased rating claim for their service-connected lumbar spine disability in April 2011, ultimately appealing it to the Board. During the pendency of the appeal, a surgical scar was noted during an August 2016 VA examination, and in a September 2016 rating decision service connection was granted effective January 12, 2012. The Veteran underwent back surgery at VA in January 2012. The August 2016 VA examination noted a scar as a result of this back surgery. Service connection was granted effective the date of this surgery. The Veteran has submitted no argument explaining why they should receive an earlier effective date for the scar. As the scar did not exist prior to this date, the Board finds that an earlier effective date is not warranted, and the claim is denied. 5. Entitlement to a total disability rating due to a TDIU from October 30, 2012 to August 23, 2016 The Veteran alleges that their service-connected disabilities render them unemployable. As noted in the May 2021 Board remand, the Veteran's service-connected disabilities combine to be 100 percent disabling effective from August 24, 2016. The period prior to October 30, 2012 will be discussed in the remand section below. A TDIU may be assigned, where the schedular rating is less than total, where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a Veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the period from October 30, 2012 to August 23, 2016, service connection is in effect for the following disabilities: 1) degenerative disc disease with lumbar stenosis with a 40 percent evaluation; 2) peripheral neuropathy of the sciatic nerve of the right lower extremity with a 20 percent evaluation; 3) peripheral neuropathy of the sciatic nerve of the left lower extremity with a 20 percent evaluation; 4) an acquired psychiatric disorder with a 30 percent evaluation; 5) radiculopathy of the femoral nerve of the left lower extremity with 20 percent evaluation; 6) tinnitus with a 10 percent evaluation; 7) tonsillectomy with a noncompensable evaluation; 8) bilateral hearing loss with a noncompensable evaluation; and 9) surgical scar associated with the lumbar spine disability with a noncompensable evaluation. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated as at least 40 percent disabling, and the combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16(a). Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU from October 30, 2012 to August 23, 2016 is warranted. An August 2015 private psychiatric disability benefits questionnaire (DBQ) notes that the Veteran graduated high school, earned an associates degree in criminal justice, and that their longest employment was with the United States Postal Service. The Veteran's DD-214s indicated that their military occupational specialty (MOS) included petroleum supply specialist, medical supply specialist, and unit supply specialist. A September 1982 VA application for education benefits notes that the Veteran worked as a fuel tank driver after service. October 2010 VA treatment records indicate that the Veteran worked in the prison system from 1995 to 1998. On their December 2020 TDIU application, the Veteran reported working as a postal clerk from June 2001 to January 2012. An August 2011 VA examination notes that the Veteran only worked one hour per day, standing and sorting mail, before going home, and that they were afraid of being terminated. In a September 2011 statement, the Veteran reported that in March 2011 they were told by their supervisor that they could only work one hour per day and would have to file for worker compensation for the remaining seven hours. As a result, the Veteran stated that they were considering retirement. An October 2012 Social Security Administration (SSA) determination found that the Veteran's disability began on January 11, 2012. In a July 2012 statement, the Veteran asserted that they underwent back surgery in January 2012, and that the Post Office told them not to return to work due to their medical conditions. And in a July 2020 statement from the Veteran's sibling, they explained that when the Veteran left their job with the Postal Service, the pain had begun to give them trouble walking and lifting, and that it forced them to retire. The Board notes that the Veteran's service-connected lumbar spine disability is their primary argument regarding their unemployability. The August 2011 VA examination indicated that the disability has a negative impact on their employment, as it precludes any kind of prolonged standing, walking, or significant lifting. In the September 2011 statement, the Veteran reported that standing for more than an hour causes the pain to become unbearable, and that they have to lean on carts and their walking cane to relieve the pain. A June 2012 VA neurology note indicates that the examiner found that the Veteran was unable to return to their prior occupation, and in a corresponding letter, informed the Veteran that their physical limitations include no heavy lifting greater than 10 pounds, no twisting or bending of the back, and only walking as much as tolerable. The October 2012 SSA determination notes that disability is due to a primary diagnosis of the service-connected lumbar spine disability, and a secondary diagnosis of neoplasm of kidney or other urinary organs, which is not service-connected. Corresponding evaluations found that the Veteran could occasionally lift 20 pounds, frequently carry 10 pounds, stand or walk for 2 hours, sit 6 hours in an 8-hour workday, push/pull unlimited, occasionally climb stairs, never climb ladders, and occasionally stoop, kneel, crouch, or crawl. The examiner found that the Veteran had an ability for light reduced to sedentary work with postural limitations, but that their past relevant work was more than unskilled in nature and required more exertion. The examiner concluded that the Veteran's skills were not transferable, and that they cannot perform the job of a mail handler. During an October 2016 VA examination, the examiner found that the lumbar spine disability had a functional impact on the Veteran's ability to work due to limited range of motion and the bilateral radiculopathy of the lower extremities. The examiner stated that the functional impact also included increased pain with prolonged sitting, walking, standing, lifting, or pushing, and that movement of the spine will impact the pain level, and decrease the Veteran's ability to perform those tasks. The Veteran's representative submitted a private medical opinion in November 2017 regarding the impact the Veteran's service-connected conditions have on the Veteran's ability to work. While written outside the appeal period at issue, the examiner did address evidence during the appeal period at issue. Based on the VA examinations noted above, the examiner opined that the Veteran would be unable to maintain substantially gainful employment due to their service-connected lumbar spine disability. The Veteran has also asserted that their service-connected psychiatric disability contributes to their unemployability. They submitted an August 2015 private psychiatric DBQ where the examiner opined that the disability caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner noted that the Veteran's symptoms include difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a worklike setting, and struggles to remember basic information. The examiner stated that the Veteran was capable of managing their financial affairs. They opined that the Veteran could not sustain stress from a competitive work environment or be expected to engage in gainful activity due to the depressive disorder secondary to their medical condition. On a corresponding residual function test, the examiner opined that the Veteran would miss 3 or more days per month due to their mental health issues, would need to leave work early 3 or more days per month, would have trouble staying focused for at least 7 of 8 hours per day more than 3 or more days per month, and would respond in an angry manner but not become violent due to normal pressure and constructive criticism more than once per month. Regarding the Veteran's other service-connected disabilities, while the Veteran's representative has submitted arguments for how the headaches and sleep apnea affect unemployability, these were not service-connected during the appeal period at issue. The Veteran and their representative have not submitted any arguments for how the hearing loss, tinnitus, tonsillectomy, and surgical scar have affected the Veteran's employability, and the record during the appeal period does not suggest anything of any probative value. And although only the October 2016 VA examination has provided an opinion regarding the functional impact on employability due to the radiculopathy, and by extension peripheral neuropathy, the Veteran consistently reported difficulty standing and mild to moderate pain and numbness in the bilateral extremities during the appeal period. Nonetheless, a claim of TDIU does not require every single service-connected disability to contribute to their unemployability. After a thorough review of the record, the Board finds that the preponderance of the evidence is in the Veteran's favor and finds that a TDIU is warranted. In favor of the Veteran's claim are the VA records generally describing how the Veteran's service-connected disabilities impact their ability to perform physical and sedentary employment. VA examinations in August 2011 and October 2016 both found that the Veteran's back disability has a significant functional impact on their ability to work. The Veteran's treating physician also recommended that they severely limit carrying, or otherwise moving the back. Also persuasive is the SSA determination that they are disabled due to their spine, and the corresponding opinion that while the Veteran would be capable of sedentary employment, their skills are not transferable. The Board also finds favorable the August 2015 private psychiatric opinion that found that the Veteran has occupational and social impairment with deficiencies in most areas, and that they would miss significant amounts of time from work per month due to their psychiatric disability. The Board affords these medical opinions great probative value because they reflect a careful consideration of the medical record, the Veteran's employment history, and the Veteran's various lay statements regarding their difficulties performing occupational tasks. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Given the Veteran's primary employment in physical labor, the Board finds it unlikely that sedentary employment, i.e., a desk job, would have been likely for this Veteran. The Veteran's primary occupation following service has been a postal clerk, which is a highly demanding position, both physically and mentally. While the Veteran did work in the prison system corresponding to their criminal justice degree, this is also a physically demanding position that the Veteran would no longer be able to do. The service-connected physical disabilities would rule out most types of physical labor, and the Veteran's psychiatric disability would make it difficult to obtain any sort of position requiring interaction with others, and meeting deadlines, particularly given the Veteran's memory issues. Finding positions that would allow unpredictable and frequent breaks for their back pain without negatively affecting their performance and standing with their employer would likely be highly difficult. Nonetheless, as noted above, SSA also determined that the Veteran has no transferable skills. And even in the last year of employment with the Postal Service, the Veteran was permitted to only work one hour per day, which does not appear to comply with the requirement of substantially gainful employment. See Ray, 31 Vet. App. at 73. Finally, entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Medical examiners may provide evidence regarding functional and occupational impairment, but the Board must decide whether a Veteran may "secure and follow a substantially gainful occupation" based on all evidence of record. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). The Board also affords some probative value to the Veteran's various lay statements that they are unable to work due to their back pain. The Board finds these statements competent as they are capable of lay observation. 38 U.S.C. § 1154(a) (2012); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which they have first-hand knowledge). The Board finds them to be credible, as they are corroborated by the various VA examinations of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Therefore, based on the various probative sources, the Board finds the preponderance of the evidence in the Veteran's favor as to whether the Veteran's service-connected disabilities preclude the Veteran from the ability to secure and follow a substantially gainful occupation consistent with their education, skills, training, and work history. Accordingly, a TDIU from October 30, 2012 to August 23, 2016 is warranted. REASONS FOR REMAND 10. Entitlement to a TDIU prior to October 30, 2012 is remanded. Remand is required for substantial compliance with the May 2021 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The May 2021 Board decision remanded in part to submit the matter of entitlement to a TDIU on an extraschedular basis prior to August 24, 2016 to the Under Secretary for Benefits and the Director of the Compensation and Pension Service (Director). At that time, prior to that date, the Veteran's combined disability rating did not meet the 70 percent schedular requirement. It was not until a June 2021 rating decision effectuating the grant of an increased evaluation for the service-connected lumbar spine disability that the combined disability rating rose to 70 percent for the period from October 30, 2012 to August 23, 2016. Supplementary Statements of the Case in July and August 2021 noted that the Veteran met the schedular requirements for a TDIU for this period, and did not submit the case to the Director for referral. However, the claim of entitlement to a TDIU rose from an increased rating claim for the lumbar spine disability in April 2011. The period from April 12, 2011 through October 29, 2012 only had a 60 percent combined rating, meaning that this period does not meet the schedular requirement, and it remains on appeal. The authority to grant TDIU on an extraschedular basis in the first instance has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service (Director) and not the Board. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). As such, and in light of the evidence of unemployability discussed above, the matter of entitlement to TDIU prior to August 24, 2016, must be referred to the Director pursuant to 38 C.F.R. § 4.16 (b). Accordingly, remand is required. Finally, the May 2021 Board remand instructed the RO to ask the Veteran to submit IRS tax returns from 2012 through 2016. In a July 2021 statement, the Veteran reported that they have not filed taxes since 2012. However, the Board notes while the Veteran retired from the Postal Service in January 2012, they were employed in 2011, and only worked one hour per day for the majority of that year. On remand, the RO should also attempt to obtain the Veteran's IRS tax returns from 2011. By this remand the Board makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Ask the Veteran to provide IRS tax returns from 2011 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2011 and submit them to VA. Tell the Veteran that if they do not have copies of his tax returns for the requested year, they may use the IRS form cited to above. (Continued on the next page) 2. Submit to the Director the matter of entitlement to TDIU on an extraschedular basis from April 12, 2011 through October 29, 2012, in accordance with the provisions of 38 C.F.R. § 4.16 (b). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.