Citation Nr: 21070632 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 13-13 628 DATE: November 24, 2021 ORDER Entitlement to a disability rating for service-connected bilateral hearing loss greater than 10 percent prior to September 4, 2018 and greater than 30 percent from that date, is denied. During the period prior to May 1, 2015, entitlement to a disability rating greater than 40 percent for degenerative disc disease of the lumbar spine, status post L1, L3, and L4 -level fractures, with thoracic spine degenerative joint disease and muscle spasm, is denied. Entitlement to a disability rating for service-connected thoracolumbar spine degenerative joint disease with intervertebral disc syndrome (IVDS) greater than 40 percent from May 1, 2015 to September 4, 2018, and greater than 50 percent from September 4, 2018, is denied. During the period from May 1, 2015 to August 31, 2018, a disability rating greater than 20 percent for service-connected radiculopathy (femoral nerve) of the right lower extremity is denied. During the period from May 1, 2015 to August 31, 2018, a disability rating greater than 20 percent for service-connected radiculopathy (femoral nerve) of the left lower extremity is denied. During the period from August 31, 2018, a higher 40 percent disability rating for service-connected radiculopathy (sciatic nerve) of the right lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. During the period from August 31, 2018, a higher 40 percent disability rating for service-connected radiculopathy (sciatic nerve) of the left lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. During the period from August 18, 2009 to October 19, 2016, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. During the period prior to September 4, 2018, the Veteran's bilateral hearing was manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level VI in the left ear. 2. During the period from September 4, 2018, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level VI in the right ear and no worse than Level VI in the left ear. 3. At the time of the Veteran's August 2009 claim for increased ratings for his service-connected thoracic and lumbar spine disabilities, a 30 percent rating for the lumbar spine disability (residuals of fractures of L1, L3, and L4) had been in effect for over 20 years. 4. During the rating period prior to May 1, 2015, service-connected degenerative disc disease of the lumbar spine, status post L1, L3, and L4-level fractures, with thoracic spine degenerative joint disease and muscle spasm was manifested by pain, including on motion, and was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent of unfavorable ankylosis during flare-ups; no incapacitating episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician, and no objective evidence of neurologic abnormalities. 5. During the period from May 1, 2015 to September 4, 2018, the Veteran's thoracolumbar spine degenerative joint disease with IVDS was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent of unfavorable ankylosis during flare-ups; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, and there were no other neurological abnormalities (other than the separately rated radiculopathy of the lower extremities). 6. During the period from September 4, 2018, the Veteran's thoracolumbar spine degenerative joint disease with IVDS is manifested by no more than unfavorable ankylosis of the entire thoracolumbar spine; was not manifested by incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; and there were no other neurological abnormalities (other than the separately rated radiculopathy of the lower extremities). 7. During the period from May 1, 2015 to August 31, 2018, radiculopathy of the right lower extremity is manifested by no more than moderate incomplete paralysis and neuritis of the femoral nerve. 8. During the period from May 1, 2015 to August 31, 2018, radiculopathy of the left lower extremity is manifested by no more than moderate incomplete paralysis and neuritis of the femoral nerve. 9. During the period from August 31, 2018, radiculopathy of the right lower extremity is manifested by no more than moderately severe incomplete paralysis and neuritis of the sciatic nerve. 10. During the period from August 31, 2018, radiculopathy of the left lower extremity is manifested by no more than moderately severe incomplete paralysis and neuritis of the sciatic nerve. 11. The Veteran's combined service-connected disability rating was 70 percent or higher throughout the rating period on appeal, and a 100 percent schedular rating has been in effect from January 12, 2021. A TDIU has been in effect from October 19, 2016. 12. The probative evidence of record demonstrates it is at least as likely as not that during the period from August 18, 2009 to October 19, 2016, the combined impact of the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. During the period prior to September 4, 2018, the criteria for a rating in excess of 10 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2020). 2. During the period from September 4, 2018, the criteria for a rating in excess of 30 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2020). 3. During the rating period prior to May 1, 2015, the criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine, status post L1, L3, and L4 -level fractures, with thoracic spine degenerative joint disease and muscle spasm are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5235, 5242 (2020). 4. During the rating period from May 1, 2015 to September 4, 2018, the criteria for a rating in excess of 40 percent for the Veteran's thoracolumbar spine degenerative joint disease with IVDS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2020). 5. During the rating period from September 4, 2018, the criteria for a rating in excess of 50 percent for the Veteran's thoracolumbar spine degenerative joint disease with IVDS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2020); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (effective February 7, 2021). 6. During the period from May 1, 2015 to August 31, 2018, the criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8626. 7. During the period from May 1, 2015 to August 31, 2018, the criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8626. 8. During the period from August 31, 2018, the criteria for a 40 percent rating (and no higher) for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 9. During the period from August 31, 2018, the criteria for a 40 percent rating (and no higher) for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 10. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU are met during the period from August 18, 2009 to October 19, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1967 to December 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ) dated in August 2010 and June 2015. The Veteran testified before a Decision Review Officer (DRO) of the AOJ in April 2014, and before the undersigned Veterans Law Judge at an October 2016 hearing; transcripts of the hearings are of record. In its August 2010 rating decision, in pertinent part, the AOJ denied increased ratings for separately service-connected lumbar and thoracic spine disabilities. The AOJ also granted service connection and a 20 percent rating for bilateral hearing loss; the Veteran appealed for a higher initial rating. Therefore, the AOJ's decision with respect to the Veteran's initially assigned rating for his bilateral hearing loss never became final. During the pendency of this appeal, the AOJ found that there was a clear and unmistakable error (CUE) in the rating assigned for bilateral hearing loss in the August 2010 rating decision, and in a June 2015 rating decision reduced the assigned evaluation to 10 percent effective August 18, 2009. In the June 2015 rating decision, the AOJ also discontinued the separate ratings for the thoracic and lumbar spine segments, and granted a 40 percent rating for a single thoracolumbar spine disability (thoracolumbar spine degenerative joint disease with IVDS) effective May 1, 2015. The AOJ found that there was a CUE in a January 2003 rating decision that granted a 20 percent disability evaluation assigned for the Veteran's thoracic spine disability, and reduced that evaluation to 10 percent effective July 1, 2002. The AOJ granted service connection and separate 20 percent ratings for femoral nerve impairment of the right and left lower extremities, effective May 1, 2015. In a December 2017 decision, in pertinent part, the Board determined that the AOJ's reduction of the rating for service-connected thoracic spine muscle spasm to 10 percent was proper, and denied an earlier effective date prior to May 1, 2015 for the award of service connection for bilateral femoral nerve impairment of the lower extremities. The Board remanded the following issues to the AOJ for additional development: entitlement to increased ratings for a thoracolumbar spine disability, bilateral hearing loss, and bilateral lower extremity femoral nerve impairment from May 1, 2015, and entitlement to a TDIU. In an April 2019 rating decision, the AOJ granted an increased 50 percent rating for service-connected thoracolumbar spine degenerative joint disease with IVDS and an increased 30 percent rating for bilateral hearing loss, each effective September 4, 2018, and granted entitlement to a TDIU from October 19, 2016. The case was subsequently returned to the Board. The Board notes that once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability" and is not a separate claim for benefits. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The grant of a TDIU for a portion of the period does not bifurcate the appeal from the underlying disability appeal because it only serves as a partial grant. The ungranted portion therefore remains an unresolved matter that is still on appeal. Harper v. Wilkie, 30 Vet. App. 356, 360 (2018). In other words, the issue of entitlement to a TDIU prior to October 19, 2016 is before the Board. The Board observes that from January 12, 2021, the Veteran has had a 100 percent schedular combined service-connected disability rating, with special monthly compensation at the housebound rate. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. 1. Higher initial rating for bilateral hearing loss greater than 10 percent prior to September 4, 2018 and 30 percent thereafter The Veteran contends that he is entitled to a higher initial 40 percent rating for bilateral hearing loss because it is severe, and he has difficulty understanding conversation. See September 2010 notice of disagreement, May 2013 substantive appeal, July 2015 notice of disagreement. He also contends that the examiners who performed the June 2010 and May 2015 VA examinations were biased against him and did not perform impartial examinations. This appeal for a higher initial rating arises from the Veteran's August 18, 2009 claim for service connection. The AOJ has rated service-connected bilateral hearing loss as 10 percent disabling from August 18, 2009, and as 30 percent disabling from September 4, 2018, under 38 C.F.R. § 4.85, Diagnostic Code 6100. At the April 2014 DRO hearing, the Veteran asserted that a higher initial rating is warranted for bilateral hearing loss because a 2011 VA outpatient treatment record showed speech recognition scores of 76 percent in the right ear, and 64 percent in the left ear. See April 2014 DRO hearing transcript, pages 3-4. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A June 18, 2010 VA examination reveals that the Veteran reported difficulty hearing and understanding conversations, especially in background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were as follows: June 2010 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 60 80 85 61 88% LEFT 25 75 80 85 66 82% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the left ear (but not the right ear). Applying the results to Table VIA yields Level VI in the left ear. 38 C.F.R. § 4.86(b). Entering the resulting bilateral numeric designation of Level III for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. Here, a 10 percent rating is warranted under either Table VI or VIA for bilateral hearing loss. An October 4, 2011 audiology note reflects that the Veteran underwent a hearing aid evaluation. The audiologist indicated that audiometric testing revealed hearing within normal limits from 250 to 1000 Hertz precipitously falling to a mild to profound sensorineural hearing loss from 1500 to 8000 Hertz in the right ear and hearing within normal limits from 250-1000 Hertz precipitously falling to a moderate to profound sensorineural hearing loss from 1500-8000 Hertz in the left ear. Word recognition scores were fair (76 percent) in the right ear and poor (64 percent in the left ear. These findings are not being used to rate the service-connected bilateral hearing loss because puretone thresholds were not recorded. An April 27, 2015 VA examination reveals that the Veteran reported wearing hearing aids for three years. When not using hearing aids, he could not hear the telephone ring, had trouble hearing the priest at church, and trouble understanding conversation in groups or noise and often asked others to repeat themselves. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were as follows: April 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 80 85 90 74 84% LEFT 35 75 80 85 69 82% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A September 4, 2018 VA examination reveals that the Veteran reported difficulty hearing and understanding conversation, including in meetings and at church. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were as follows: September 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 85 85 85 73 72% LEFT 35 85 85 85 73 68% Applying the results to Table VI, the findings yield a numeric designation of Level VI in the right ear and Level VI in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. During the period prior to September 4, 2018, based on the evidence above, a rating in excess of 10 percent for the Veteran's bilateral hearing loss is not warranted. During the period from September 4, 2018, based on the evidence above, a rating in excess of 30 percent for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's lay statements of difficulty hearing conversation, especially with background noise, and inability to hear the telephone ring when he was not wearing his hearing aids. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 10 percent for hearing loss prior to September 4, 2018, and entitlement to a rating in excess of 30 percent for hearing loss from September 4, 2018. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an increased rating greater than 40 percent prior to May 1, 2015, for degenerative disc disease of the lumbar spine, status post L1, L3, and L4 -level fractures, with thoracic spine degenerative joint disease and muscle spasm 3. Entitlement to an increased rating for thoracolumbar spine degenerative joint disease with IVDS greater than 40 percent from May 1, 2015 to September 4, 2018 The Veteran contends that he is entitled to an increased 50 percent rating for his thoracolumbar spine disability prior to September 4, 2018 because his disability is severe, and is manifested by chronic severe pain, loss of mobility, painful motion, loss of flexibility, bone on bone contact in the affected degenerative disc area of L1, L3, L4, loss of function, and limitation of daily life activities including walking, bending, and kneeling. See September 2010 notice of disagreement, June 2011 statement, May 2013 substantive appeal, July 2015 notice of disagreement, and October 2016 Board hearing. He also contends that the examiners who performed the June 2010 and May 2015 VA examinations were biased against him and did not perform impartial examinations. The Board finds that the VA examination reports of record were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. The examinations were conducted by competent medical professionals. In addition, it is not shown that the examinations were in any way incorrectly conducted or that the VA examiners failed to address the clinical significance of the Veteran's symptoms. Further, the VA examination reports addressed the applicable rating criteria. In this regard, the reports of record contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the service-connected thoracolumbar spine disability to provide probative medical evidence for rating purposes. The Board finds that the most recent VA examinations are adequate as they provide the information needed to properly rate his thoracolumbar spine disability. 38 C.F.R. §§ 3.327, 4.2. This appeal arises from the Veteran's August 18, 2009 claim for an increased rating for his service-connected thoracolumbar spine disability. Prior to the instant appeal, the Veteran had two separate ratings for thoracic and lumbar spine disabilities, based on the rating criteria then in effect. Historically, in a January 1971 rating decision, service connection and a 20 percent rating were granted for a lumbar spine disability: residuals of healed fractures at L1, L3, and L4. In a June 2002 rating decision, the AOJ granted an increased 30 percent rating for this disability effective May 11, 2001, under 38 C.F.R. § 4.71a, Diagnostic Codes 5285-5295. Service connection and a separate 20 percent rating were subsequently granted for thoracic spine muscle spasm with degenerative joint disease effective July 1, 2002 in a January 2003 rating decision under 38 C.F.R. § 4.71a, Diagnostic Code 5291 (2002). The rating criteria in effect at the time of the January 2003 rating decision provided separate ratings for disabilities affecting the dorsal (or thoracic) and lumbar spine segments. The rating criteria for evaluating spine disabilities were amended effective September 23, 2002, September 26, 2003, and February 7, 2021. Throughout the rating period on appeal, under the current regulations pertaining to the spine, which will be discussed more fully below, disabilities of the lumbar and thoracic spine segments must be evaluated together. Governing regulation provides that a readjustment to the Schedule for Rating Disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved. 38 C.F.R. § 3.951 (a). A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by VA will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. 38 C.F.R. § 3.951 (b). With regard to the service-connected lumbar spine disability, since the 30 percent rating for residuals of fractures of L1, L3, and L4 has been in effect for more than 20 years, it is a protected rating, and cannot be reduced. Id. In the August 2010 rating decision on appeal, the AOJ denied an increase in the 30 percent rating for the lumbar spine disability and denied an increase in the 20 percent rating for the thoracic spine disability. In its June 2015 rating decision, the AOJ found that there was CUE in the January 2003 rating decision, and reduced the thoracic spine rating to 10 percent effective July 1, 2002. The Board has since determined that this rating reduction was proper. See December 2017 Board decision. Thus, during the portion of the rating period on appeal prior to May 1, 2015, the AOJ has rated the lumbar spine disability as 30 percent disabling, and the thoracic spine disability as 10 percent disabling. The combined rating for the separately service-connected lumbar and thoracic spine disabilities during the period prior to May 1, 2015 is 40 percent. See 38 C.F.R. § 4.25. In a June 2015 rating decision, the AOJ discontinued the separate ratings for the thoracic and lumbar spine segments, and granted a single 40 percent rating effective May 1, 2015 for the service-connected thoracolumbar spine disability, now characterized as thoracolumbar spine degenerative joint disease with IVDS, under Diagnostic Code 5243 (pertaining to IVDS). The AOJ also granted service connection and separate 20 percent ratings for femoral nerve impairment of the right and left lower extremities associated with the thoracolumbar spine disability, effective May 1, 2015. Once a rating higher than the combined evaluation of 40 percent for the lumbar spine and thoracic spine disabilities can be assigned, separate ratings for the thoracic and lumbar spine would violate the rule against pyramiding. See 38 C.F.R. § 4.14. Rating the thoracic and lumbar spine together, as the AOJ has done in this case, does not constitute a reduction per 38 C.F.R. § 3.951; rather, the disability has merely been recharacterized to permit a higher, and more favorable, evaluation. From September 4, 2018, thoracolumbar spine degenerative joint disease with IVDS has been rated 50 percent disabling. Thus, the issue before the Board is whether an increased rating greater than 40 percent is warranted for the thoracolumbar spine disability prior to September 4, 2018, and whether a rating greater than 50 percent is warranted from September 4, 2018. Increased rating greater than 40 percent prior to May 1, 2015 During the portion of the rating period on appeal prior to May 1, 2015, the AOJ has rated the service-connected lumbar spine disability (residuals of fractures of L1, L3, and L4) as 30 percent disabling under Diagnostic Code 5235 (pertaining to vertebral fracture or dislocation), and the thoracic spine disability (thoracic spine muscle spasm with degenerative joint disease) as 10 percent disabling under Diagnostic Code 5237 (pertaining to lumbosacral strain). 38 C.F.R. § 4.71a. The December 2009 VA examiner changed the prior diagnosis of the lumbar spine disability to degenerative disc disease of the lumbar spine, status post L1, L3, and L4 -level fractures, but indicated that there was no change in the thoracic spine diagnosis. The examiner opined that the new lumbar spine diagnosis was a progression of the previous diagnosis, and noted that the Veteran had sustained compression fractures to the lumbar spine, significant degenerative disc disease of the lumbar spine, with trauma and inflammatory changes. The examiner stated that the current X-ray study of the lumbar spine showed degenerative arthritis and mild previous compression fractures at L3 and L4. The assignment of a particular diagnostic code is completely dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. The selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. § 3.951; see also Butts, 5 Vet. App. at 538. Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. During the period prior to May 1, 2015, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for service-connected residuals of fractures of L1, L3, and L4 with thoracic spine muscle spasm and degenerative joint disease. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that during flare-ups he had low back pain, could only walk short distances, had restricted mobility, and could not sit for prolonged periods of time, would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine or equate to the functional equivalent of ankylosis. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). At a December 2009 VA examination, the Veteran reported that his ability to walk was limited, and he could walk 20 yards on average, but had not experienced falls due to his spine condition. On examination, range of motion of the thoracolumbar spine was as follows: forward flexion was to 90 degrees, and extension, right and left lateral flexion, and right and left lateral rotation were all to 30 degrees; the examiner stated that range of motion was within normal limits. After repetitive motion testing, there was no additional limitation of motion. The examiner indicated that joint function of the spine was additionally limited by the following after repetitive use: pain, fatigue, weakness, lack of endurance, and pain had the major functional impact. The examiner explicitly stated there was no ankylosis of the thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding that during the period prior to May 1, 2015, the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. At the December 2009 VA examination, the Veteran stated that he had no incapacitation from his thoracolumbar spine disability in the past 12 months. The May 1, 2015 VA examiner indicated that the Veteran had not had any incapacitating episodes over the past 12 months due to IVDS. Regarding neurological impairment, the Veteran asserts that during the period prior to May 1, 2015, he had paresthesia, pain, numbness, and weakness of the legs that is related to his service-connected thoracolumbar spine disability. While the Veteran is competent to report symptomatology that he experiences, he has not shown that he has the medical experience or training to relate the condition to his service-connected spine disability, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. Accordingly, the Veteran's statements that he had radiculopathy of the bilateral lower extremities prior to May 1, 2015 that is related to his spine condition are not competent evidence. The Board finds that medical evidence of record during this period is against a finding that the Veteran has any other objective neurological abnormalities associated with his spine disability. The Veteran's relevant treatment records are negative for bilateral lower extremity neurological deficits. The Board notes that VA outpatient treatment records reflect that in 1976, the Veteran suffered a post-service left hip injury and right tibia fracture in a motor vehicle accident, and underwent a left total hip arthroplasty. See VA outpatient treatment records dated in January 2005 and June 2008. In October 2009, the Veteran was treated for complaints of left knee and thigh pain and an unsteady left knee; he denied loss of sensation, numbness, tingling, tremors, and weakness. On examination, there was increased laxity of the cruciate ligaments in the left knee. On neurological examination, there were no gross sensory or motor deficits. The diagnostic assessment was unstable left knee, and suspected internal injury. On VA examination in December 2009, no neurological deficits were noted. There were no sensory deficits from L1-L5, or of S1, and there was no lumbosacral motor weakness. Reflexes were 2+ in the right and left lower extremities at the knees and ankles, there were no signs of pathologic reflexes, and cutaneous reflexes were normal. Straight leg raising tests were negative bilaterally. The examiner stated that there were no signs of lumbar IVDS with chronic and permanent nerve root involvement. Rectal and genital examinations were within normal limits. The examiner stated that the Veteran did not have bladder problems or erectile dysfunction related to the thoracolumbar spine disability. The May 1, 2015 and September 4, 2018 VA examiners also indicated that the Veteran did not have any neurologic abnormalities or findings related to the thoracolumbar spine disability such as bowel or bladder problems or pathologic reflexes, other than the separately service-connected right and left lower extremity femoral nerve impairment (which has been service-connected since May 1, 2015). For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for the thoracolumbar spine disability during the period prior to May 1, 2015. 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. Increased rating greater than 40 percent from May 1, 2015 to September 4, 2018 The May 1, 2015 VA examiner changed the prior diagnosis of the thoracolumbar spine disability to include IVDS, femoral, and opined that the new diagnosis was a progression of the previous diagnosis. During the portion of the rating period from May 1, 2015 to the present, the Veteran's thoracolumbar spine degenerative joint disease with IVDS has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020), for IVDS. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. During the rating period from May 1, 2015 to September 4, 2018, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for thoracolumbar spine degenerative joint disease with IVDS based on incapacitating episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. The May 1, 2015 and September 4, 2018 VA examiners each indicated that the Veteran had not had any incapacitating episodes over the past 12 months due to IVDS. The preponderance of the evidence is also against a rating in excess of 40 percent for thoracolumbar spine degenerative joint disease with IVDS under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to constant pain, weakened movement, excess fatigability, and repetitive use. He did not report that flare-ups impacted the function of his low back on VA examination in May 2015. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he was unable to sit, stand, or lie down for long periods (see May 1, 2015 VA examination), and sometimes asked his family not to move him due to back pain (see October 2016 Board hearing transcript), would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The May 2015 VA examiner stated that the Veteran had contributing factors of pain, weakness, fatigability and/or incoordination, but no addition limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. At the May 1, 2015 VA examination, range of motion of the thoracolumbar spine was as follows: forward flexion to 20 degrees, with evidence of painful motion at 20 degrees, extension to 10 degrees with evidence of painful motion at 10 degrees, right and left lateral flexion to 5 degrees with evidence of painful motion at 5 degrees, and right and left lateral rotation to 10 degrees with evidence of painful motion at 10 degrees. After repetitive motion testing, there was no additional limitation of motion. The examiner indicated that after repetitive use, the Veteran had less movement than normal and pain on movement. The examiner explicitly stated there was no ankylosis of the thoracolumbar spine. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the right and left lower extremity, involving the femoral nerve, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The May 1, 2015 and September 4, 2018 VA examiners also indicated that the Veteran did not have any other neurologic abnormalities or findings related to the thoracolumbar spine disability such as bowel or bladder problems or pathologic reflexes. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for thoracolumbar spine degenerative joint disease with IVDS during the rating period from May 1, 2015 to September 4, 2018. 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. 4. Entitlement to an increased rating for thoracolumbar spine degenerative joint disease with IVDS greater than 50 percent from September 4, 2018 From September 4, 2018, thoracolumbar spine degenerative joint disease with IVDS has been rated 50 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). During the pendency of the current appeal, effective February 7, 2021, VA revised the criteria for rating certain musculoskeletal disabilities, including Diagnostic Code 5242 (pertaining to degenerative arthritis of the spine (see also Diagnostic Code 5003)), and Diagnostic Code 5243 (pertaining to IVDS). The revised rating criteria of Diagnostic Codes 5242-5243, as in effect from February 7, 2021, now provide that degenerative arthritis and degenerative disc disease other than IVDS are rated under Diagnostic Code 5242. Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2021). The revised criteria apply to all applications for benefits received by VA on or after that date; however, only the old rating criteria may be applied prior to the effective date. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. The Board finds that the revised version of Diagnostic Code 5243 is not applicable in the Veteran's case because the evidence does not show disc herniation with compression and/or irritation of the adjacent nerve root. Therefore, the former version of Diagnostic Code 5243 is more favorable to the Veteran, and will be applied. During the period from September 4, 2018, the Board finds that the preponderance of the evidence is against a rating in excess of 50 percent for thoracolumbar spine degenerative joint disease with IVDS based on incapacitating episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. The September 4, 2018 VA examiner indicated that the Veteran had not had any incapacitating episodes over the past 12 months due to IVDS, and VA outpatient treatment records during this period do not show incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. At the September 2018 VA examination, the Veteran reported that twice a year, he had a flare-up that made it impossible to get out of bed and bear weight, and they lasted an entire day, during which he had to be picked up by his son and carried to the bathroom and to care. During the period from September 4, 2018, the preponderance of the evidence is also against a rating in excess of 50 percent for thoracolumbar spine degenerative joint disease with IVDS under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that twice a year, he had a flare-up that made it impossible to get out of bed and bear weight, would not result in symptoms more nearly approximating unfavorable ankylosis of the entire spine. In this regard, the Board notes that service connection has not been established for a cervical spine disability. Even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Service connection has not been established for a cervical spine disability, and fixation of a spinal segment in neutral position (zero degrees), as in this case, is "always" considered favorable ankylosis. Id. On VA examination in September 2018, range of motion of the thoracolumbar spine was as follows: forward flexion to 15 degrees, extension to 0 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 0 degrees. The examiner stated that the Veteran could hardly bend forward at all due to the severity of the bridging degenerative arthritis. Pain was noted at rest, on motion, and with weight-bearing. There was objective evidence of localized tenderness or pain to palpation of the entire thoracolumbar spine. After repetitive motion testing, there was no additional loss of function or range of motion. The examiner indicated that pain and lack of endurance limited his functional ability with repeated use over a period of time. The examiner opined that the Veteran could not do any range of motion during a flare-up, and that there was ankylosis of the spine. The examiner opined that the Veteran's service-connected thoracolumbar spine disability has severely progressed to now include bilateral severe femoral and sciatic nerve radiculopathy, severe lumbar stenosis, and mild thoracic degenerative changes. The examiner indicated that these are not separate or new conditions, but a progression of the service-connected lumbar injury, and the thoracic spine degenerative joint disease and sprain with spasms is due to compensation for the severity of the lumbar spine disability. Regarding neurological impairment, the Veteran has already been granted service connection for right and left lower extremity femoral nerve impairment (radiculopathy), and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The September 4, 2018 VA examiner indicated that the Veteran had radiculopathy of the lower extremities, but did not have any other neurologic abnormalities or findings related to the thoracolumbar spine disability such as bowel or bladder problems or pathologic reflexes. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 50 percent for thoracolumbar spine degenerative joint disease with IVDS during the period from September 4, 2018. 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. 5. Increased rating for femoral nerve impairment of the right lower extremity greater than 20 percent from May 1, 2015 6. Increased rating for femoral nerve impairment of the left lower extremity greater than 20 percent from May 1, 2015 The Veteran contends that he is entitled to a higher rating for service-connected femoral nerve impairment of the lower extremities. At the October 2016 Board hearing, he testified that he used a cane, and his legs sometimes gave out, causing him to fall. The AOJ has rated service-connected radiculopathy of the right and left lower extremities (femoral nerve impairment) as 20 percent disabling for each lower extremity under Diagnostic Code 8626. Paralysis of the anterior crural nerve (femoral) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8626 and 8726). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 disabling. Complete paralysis of the quadriceps extensor muscles is rated 40 percent disabling. 38 C.F.R. § 4.124a. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. The May 1, 2015 VA examiner indicated that there was bilateral radiculopathy of both lower extremities, involving only the femoral nerve. An August 31, 2018 private electromyography (EMG)/ nerve conduction study (NCS) showed reduced amplitude and decreased conduction velocity of the right peroneal motor nerve, and reduced amplitude of the bilateral superficial peroneal sensory nerves; other nerves were within normal limits. The diagnostic impression was severe lumbar stenosis. The September 4, 2018 VA examiner indicated that there was bilateral radiculopathy of both lower extremities, involving the femoral nerve and the sciatic nerve. Upon review of the record, the Board finds that from August 31, 2018, the date of the EMG/NCS discussed above, the criteria for a higher 40 percent rating under Diagnostic Code 8620 have been more nearly approximated for each lower extremity. Regarding impairment of motor functions, the evidence reflects that muscle strength of the bilateral lower extremities was 5/5 (normal) on VA examinations in May 2015 and September 2018. On private neurological evaluation on August 31, 2018, muscle testing was 5/5 strength and symmetric bilaterally except for right 5- EHL and dorsi. Regarding trophic changes, on VA examinations in May 2015 and September 2018 there were no trophic changes (characterized by loss of extremity hair, smooth, shiny skin) attributable to radiculopathy. Regarding sensory disturbance, on VA examination in May 2015, sensation was decreased in the bilateral upper anterior thighs (L2), and was otherwise normal. On private neurological evaluation on August 31, 2018, sensation to light touch was normal. On VA examination in September 2018, sensation was normal throughout both lower extremities. At both VA examinations, there was moderate paresthesias and/or dysesthesias in both lower extremities, but no numbness. Regarding loss of reflexes, on VA examination in May 2015, reflexes were normal (2+) bilaterally. On private neurological evaluation on August 31, 2018, reflexes were 2+ and symmetric bilaterally except for 1+ over the left Achilles. On VA examination in September 2018, reflexes in both knees and the right ankle were normal (2+), and 1+ (hypoactive) in the left ankle. Regarding pain, on VA examination in May 2015, there was no constant or intermittent pain in either lower extremity. On VA examination in September 2018, there was mild constant pain (may be excruciating at times), consistent with neuritis, and severe intermittent pain (usually dull) in both lower extremities, consistent with neuralgia. Regarding muscle atrophy, there was no muscle atrophy in either lower extremity on examinations in May 2015 and September 2018. Regarding complete paralysis, the medical evidence, including the May 2015 and September 2018 VA examinations, does not show complete paralysis in either the right or left lower extremities. Based on the above, during the period prior to August 31, 2018, the Board finds that the disability is primarily manifest by sensory disturbance. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The May 2015 VA examiner opined that the Veteran had moderate radiculopathy of each lower extremity, with involvement of the femoral nerve and no involvement of the sciatic nerve. The Board thus finds that during the period prior to August 31, 2018, the level of impairment is most analogous to moderate incomplete paralysis of the femoral nerve. During the period from August 31, 2018, the Board finds that the disability is primarily manifest by impairment of motor functions, sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, or complete paralysis. The September 2018 VA examiner noted that the EMG/NCS was positive for severe lumbar stenosis and bilateral radiculopathy, and opined that there was moderate bilateral radiculopathy. The Board finds that the level of impairment more nearly approximates moderately severe incomplete paralysis of the sciatic nerve under Diagnostic Code 8620, for neuritis. 38 C.F.R. § 4.123. Although the September 2018 VA examiner noted that the Veteran's bilateral lower extremity radiculopathy involves the sciatic and femoral nerves, the Board finds that the Veteran is not entitled to separate ratings under Diagnostic Codes 8520 and 8526, as the femoral nerve and sciatic nerve both affect the L4 nerve root. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1252, 1253, 1256, 1257 (32nd ed. 2012). Therefore, the functions associated these nerves overlap, and thus are not separate and distinct. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (separate ratings are permissible where none of the symptomatology for one condition is duplicative of or overlapping with the symptomatology of another condition). Accordingly, separate ratings for impairment of the sciatic and femoral nerves are not warranted. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for radiculopathy (femoral nerve) of the right lower extremity and a rating in excess of 20 percent for radiculopathy (femoral nerve) of the left lower extremity, during the period prior to August 31, 2018. 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. Resolving reasonable doubt in his favor, the Board finds that from August 31, 2018, a higher 40 percent rating is warranted for radiculopathy (sciatic nerve) of the right lower extremity and a higher 40 percent rating is warranted for radiculopathy (sciatic nerve) of the left lower extremity. The Board acknowledges that the Veteran uses an assistive device due to his thoracolumbar spine disability with radiculopathy. However, 38 C.F.R. § 4.120 "contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker." Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). 7. Entitlement to a TDIU prior to October 19, 2016 In an April 2019 rating decision, the AOJ granted entitlement to a TDIU from October 19, 2016, the date of a Board hearing, finding that his testimony was an inferred claim. A request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. The Veteran's TDIU claim was raised with his August 18, 2009 claims for increased ratings for his service-connected posttraumatic stress disorder (PTSD), thoracolumbar spine disability, and for service connection for bilateral hearing loss. The Veteran's combined service-connected disability rating was 70 percent or higher throughout the rating period on appeal. A TDIU has been in effect from October 19, 2016, and a 100 percent schedular rating has been in effect from January 12, 2021. Thus, throughout the rating period prior to October 19, 2016, he met the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16 (a). What remains to be determined is whether his service-connected disabilities rendered him unemployable during the period prior to October 19, 2016. Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The United States Court of Appeals for Veterans Claims (Court) recently defined "substantially gainful employment," holding that there is both an economic and a noneconomic component; the economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Whether a service-connected disability or disabilities renders a Veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care professionals. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). In the Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated in March 2006, the Veteran stated that he was too disabled to work due to PTSD and his back disability. He reported that he worked on a full-time basis at a state department of employment from February 1981 through January 2006 as a local veterans' employment representative, and left his job due to his disabilities. In a VA Form 21-4192 dated in April 2006, a state department of employment security stated that the Veteran worked there as a work source specialist on a full-time basis from February 1980 through January 2006, when he retired. He was receiving retirement benefits. In September 2006, the Veteran said he was unable to tolerate a work environment, because he could not handle the stress due to his PTSD. At the October 19, 2016 Board hearing, he testified that he retired early due to PTSD and his back disability, and said that when he was working, he could only sit or stand for an hour due to his spine disability, and struggled to hear others in meetings due to his service-connected bilateral hearing loss. On VA PTSD examination in December 2009, the examiner opined that the severity of the Veteran's PTSD and alcohol was moderate, and that despite his PTSD residuals, and his tendency to irritability or testiness on the job, he probably could work at present, as he has in the past, were it not for retirement. His retirement may have come somewhat earlier than it otherwise would have, had it not been for the PTSD residuals involving the need to move or watch his back, and his tendency to become irritable or short with coworkers or supervisors. The December 2009 VA spine examiner opined that the spine disability prevented him from walking or sitting for prolonged periods, and he could not run. The May 2015 VA examiner opined that the thoracolumbar spine disability affected his ability to work and his ability to bend, lift, or carry a load. The Veteran reported that he retired early due to back problems, and his femoral nerve pain caused sleep issues, he was unable to walk on concrete or get in and out of a car, and had to hire out for heavy chores. After a review of all of the evidence of record, with regard to the economic component of substantially gainful employment, the Board finds that the Veteran was unemployed (retired) on August 18, 2009 when he filed his increased rating claims, and has not worked since. With regard to the noneconomic component of substantially gainful employment, the evidence reflects that the Veteran has impairment due to both service-connected and non-service-connected physical and psychiatric disabilities. Based on the lay and medical evidence of record, and after resolving reasonable doubt in the Veteran's favor, the Board finds that from August 18, 2009, his service-connected disabilities, especially in combination, were of a nature and severity as to preclude him from engaging in the type of work for which he is qualified by reason of past education, work experience and training. VA examinations and medical records indicate that the manifestations and combined limitations of the Veteran's service-connected disabilities prevented him from obtaining or following substantial gainful employment during the period from August 18, 2009 to October 19, 2016, and the criteria for a TDIU are met during this period under 38 C.F.R. § 4.16 (a). The Board finds that it is not factually ascertainable that entitlement to TDIU arose on a date during the year prior to his August 18, 2009 claim. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.