Citation Nr: 21071074 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 14-31 142A DATE: November 29, 2021 ORDER Entitlement to an earlier effective date, prior to January 14, 2021, for the grant of service connection for left lower extremity femoral nerve radiculopathy associated with thoracolumbar degenerative disc disease, status post (S/P) fusion, is denied. Entitlement to an earlier effective date, prior to January 14, 2021, for the grant of service connection for right lower extremity femoral nerve radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, is denied. Entitlement to a disability rating in excess of 10 percent for thoracolumbar degenerative disc disease, S/P fusion, from October 27, 2003 to March 7, 2015 is denied. Entitlement to a disability rating in excess of 20 percent for thoracolumbar degenerative disc disease, S/P fusion, for the period from March 7, 2015 to January 14, 2021 is denied. Entitlement to a disability rating in excess of 40 percent for thoracolumbar degenerative disc disease, S/P fusion, for the period from January 14, 2021 is denied. Entitlement to a disability rating in excess of 10 percent for left lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period prior to March 7, 2015 is denied. Entitlement to a disability rating in excess of 20 percent for left lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period from March 7, 2015 is denied. Entitlement to a disability rating in excess of 10 percent for right lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period prior to March 7, 2015 is denied. Entitlement to a disability rating in excess of 20 percent for right lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period from March 7, 2015 is denied. Entitlement to a disability rating in excess of 10 percent for left lower extremity femoral nerve radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, is denied. Entitlement to a disability rating in excess of 10 percent for right lower extremity femoral nerve radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) for the period from January 14, 2021 is granted. REMANDED Entitlement to an extraschedular total disability rating based upon individual unemployability (TDIU) for the period prior to January 14, 2021 is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection a back disorder was received on October 27, 2003. 2. The first evidence of radiculopathy of the femoral nerves in the lower extremities was from January 14, 2021, the date of the Veteran's most recent VA examination for back conditions. 3. For the period prior to March 7, 2015, the preponderance of the evidence suggests that the Veteran's back disability was not productive of limitation of range of range motion resulting forward flexion of the thoracolumbar spine to 60 degrees or less, combined range of motion to 170 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour; additionally, there is no evidence of ankylosis of the thoracolumbar spine or incapacitating episodes resulting in periods of prescribed bedrest. 4. For the period from March 7, 2015 to January 14, 2021, the preponderance of the evidence is against finding that the Veteran's back disability resulted in favorable ankylosis of the thoracolumbar spine, forward flexion of the thoracolumbar spine to 30 degrees or less, or episodes of prescribed bed rest. 5. For the period from January 14, 2021, the preponderance of the evidence is against finding that the Veteran's back disability resulted in unfavorable ankylosis of the entire thoracolumbar spine or episodes of prescribed bed rest having a total duration of at least 6 weeks in a 12-month period. 6. For the period prior to March 7, 2015, the Veteran's radiculopathy of the left lower extremity has been manifested by no more than mild incomplete paralysis of the left sciatic nerve. 7. For the period from March 7, 2015, the Veteran's radiculopathy of the left lower extremity has been manifested by no more than moderate incomplete paralysis of the left sciatic nerve. 8. For the period prior to March 7, 2015, the Veteran's radiculopathy of the right lower extremity has been manifested by no more than mild incomplete paralysis of the right sciatic nerve. 9. For the period from March 7, 2015, the Veteran's radiculopathy of the right lower extremity has been manifested by no more than moderate incomplete paralysis of the right sciatic nerve. 10. The Veteran's radiculopathy of the right lower extremity has been manifested by no more than mild incomplete paralysis of the left femoral nerve. 11. The Veteran's radiculopathy of the right lower extremity has been manifested by no more than mild incomplete paralysis of the right femoral nerve. 12. For the period from January 14, 2021, the Veteran meets the criteria for schedular consideration for TDIU, and the evidence indicates that he was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date, prior to January 14, 2021, for the grant of service connection for left lower extremity femoral nerve radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, have not been met. 38 U.S.C. §§ 1110, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.156(c), 3.400. 2. The criteria for entitlement to an earlier effective date, prior to January 14, 2021, for the grant of service connection for right lower extremity femoral nerve radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, have not been met. 38 U.S.C. §§ 1110, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.156(c), 3.400. 3. The criteria for entitlement to a disability rating in excess of 10 percent for thoracolumbar degenerative disc disease, S/P fusion, for the period prior to March 7, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5243. 4. The criteria for entitlement to a disability rating in excess of 20 percent for thoracolumbar degenerative disc disease, S/P fusion, for the period from March 7, 2015 to January 14, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5243. 5. The criteria for entitlement to a disability rating in excess of 40 percent for thoracolumbar degenerative disc disease, S/P fusion, for the period from January 14, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010-5243. 6. The criteria for entitlement to a disability rating in excess of 10 percent for left lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period prior to March 7, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 7. The criteria for entitlement to a disability rating in excess of 20 percent for left lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period from March 7, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 8. The criteria for entitlement to a disability rating in excess of 10 percent for right lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period prior to March 7, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 9. The criteria for entitlement to a disability rating in excess of 20 percent for right lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period from March 7, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 10. The criteria for entitlement to a disability rating in excess of 10 percent for left lower extremity femoral nerve radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DCs 8526, 8527. 11. The criteria for entitlement to a disability rating in excess of 10 percent for right lower extremity femoral nerve radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DCs 8526, 8527. 12. The criteria for TDIU for the period from January 14, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to May 2002. This case has a lengthy procedural history. These matters come before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), following a July 2012 Board decision granting the Veteran's claim for service connection for thoracolumbar syndrome. The Veteran's appeal dates to his October 2003 claim for service connection. The Veteran's appeal was most recently remanded by the Board in an April 2018 decision. The Board finds that the RO substantially complied with its remand directives. The Board notes that it is considering the Veteran's claims for increased ratings for sciatic radiculopathy of the lower extremities as well as his claims for increased ratings and earlier effective dates for femoral radiculopathy of the lower extremities. All arose during the pendency of this appeal. In an April 2015 rating decision, the RO granted service connection for bilateral radiculopathy of the lower extremities involving the sciatic nerves, secondary to the service-connected back disability on appeal. The Veteran filed a Notice of Disagreement (NOD) with this decision in June 2015. In an October 2017 rating decision, the RO increased the Veteran's rating for his sciatic radiculopathy disability to 20 percent, effective March 7, 2015. Increased ratings for these disabilities were denied in an October 2019 rating decision. In a February 2021 rating decision, the RO granted service connection for bilateral radiculopathy of the lower extremities involving the femoral nerves, secondary to the service-connected back disability on appeal, effective January 14, 2021. The Veteran submitted a request for Higher-Level Review (HLR) in March 2021 and explicitly noted his disagreement with the disability rating and effective dates assigned for his femoral radiculopathy disabilities. His request for earlier effective dates was denied in a May 2021 rating decision. The Board finds these effective date claims to be downstream from the legacy claim for an increased rating for a back disability on appeal. Therefore, the Board may properly consider all the issues listed in this decision. 1. and 2. Entitlement to an earlier effective date, prior to January 14, 2021, for the grant of service connection for left and right lower extremity femoral nerve radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, The Veteran claims that he is entitled to an effective date prior to January 14, 2021 for the grant of service connection for bilateral femoral radiculopathy of the lower extremities. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A "claim" for VA compensation purposes, is broadly defined to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155. In this case, the Veteran filed a claim for service connection for his back disability in October 2003. The Veteran's VA treatment records are negative for complaints, treatment, or diagnosis of radiculopathy involving the femoral nerves. The Board has also considered the lay statements of record; however, they do not provide evidence of femoral radiculopathy specifically. Additionally, the statements from the Veteran and his family lack the probative weight of the medical evidence of record, as they lack the medical expertise necessary to diagnose or to provide an onset date for such conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's February 2010, March 2015, and July 2019 VA examinations for back conditions were all negative for findings of radiculopathy involving the femoral nerves. During the Veteran's January 14, 2021 VA examination for back conditions, the VA examiner noted bilateral radiculopathy of the femoral nerves. This is the first evidence of record of radiculopathy involving the femoral nerves. In February 2021, the RO granted service connection for radiculopathy of the lower extremities involving the femoral nerves, as secondary to the Veteran's back disability and downstream from his claim for an increased rating for said back disability. The Board finds that the preponderance of the evidence is against the Veteran's claims for earlier effective dates. While the period on appeal dates to October 2003 and there is evidence of sciatic radiculopathy earlier in the period on appeal, there is no evidence of femoral radiculopathy prior to the current effective date. As entitlement to service connection for radiculopathy of the femoral nerves did not arise until after the Veteran's claim was received, the current effective date for the grant of service connection, January 14, 2021, is the earliest possible effective date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, the claims for earlier effective dates for the grants of service connection for radiculopathy of the femoral nerve of the left and right lower extremities are denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. 3. to 5. Entitlement to a disability rating in excess of 10 percent for thoracolumbar degenerative disc disease, S/P fusion, for the period prior to March 7, 2015; in excess of 20 percent from March 7, 2015 to January 14, 2021; and in excess of 40 percent for the period from January 14, 2021 onward The Veteran asserts that his service-connected back disability is more severe than is reflected by his current staged evaluations. Spinal conditions are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The General Rating Formula provides for a 20 percent rating with 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5242). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. According to the Formula for Rating IVDS, under DC 5243, a 20 percent rating requires evidence of 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 requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is defined as 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). If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Note (2). The Board notes that a temporary 100 percent evaluation was assigned for the period from June 15, 2011 to September 1, 2011, under 38 C.F.R. § 4.30. Finally, the Board notes that the newly enacted Diagnostic Code 5244, concerning traumatic paralysis, was effectuated in February 7, 2021. However, there is no evidence of this particular diagnosis of record, and it is thus inapplicable to the case at hand. In this case, the Veteran filed a claim for service connection for his back disability in October 2003. During the June 2004 VA examination, the Veteran reported a bulging disc and back pain. In a December 2004 Form 9 statement, the Veteran asserted that VA refused to consider X-rays of his back. In a March 2005 statement in support of his claim, the Veteran asserted that he experienced back pain and could not work due to his disabilities. June 2005 private treatment records note evidence of degeneration but are negative for evidence of limitation of range of motion, ankylosis, or IVDS. During the Veteran's February 2010 VA examination, the Veteran reported constant, sharp pain in his back and that he could not work due to his back and shoulder problems. Forward flexion was to 90 degrees with pain throughout, extension to 5 degrees with mid and lower back pain. Right and left lateral rotation was to 20 degrees with lower back pain. Right and left lateral flexion was to 30 degrees with lower back pain. There was no additional functional loss with repetitive use. The Veteran did not report flare-ups and no incapacitating episodes in the past 12 months. The Veteran used a cane, but the examiner stated that this was due to his knee conditions rather than his back problems. He had a normal gait when using the cane. During the Veteran's March 2015 VA examination for back conditions, the examiner noted diagnoses for degenerative arthritis of the spine, annular tears and disc bulges, and degenerative disc disease. The Veteran reported flare-ups, with pain radiating into his lower extremities. Initial range of motion (ROM) measurements were as follows: forward flexion to 70 degrees; extension to 5 degrees; and all other forms of motion to 10 degrees. Pain was present with all forms of motion. Repetitive use testing was performed, but it did not reveal additional functional loss. The Veteran was negative for ankylosis of the spine, IVDS, and other neurologic abnormalities. He was positive for moderate radiculopathy of the sciatic nerve in both legs. In a June 2015 statement, the Veteran's representative argued that the Veteran was not provided an examination that adequately assessed his back disability symptoms, such as range of motion, until the March 2015 VA examination. Consequently, they argued that any findings from the March 2015 VA examination should be applied to the period prior to that examination as well. During the Veteran's July 2019 VA examination for back conditions, he reported moderate to severe chronic back pain but no flare-ups. Initial range of motion (ROM) measurements were as follows: forward flexion to 70 degrees; extension to 10 degrees; right and left lateral flexion to 30 degrees; and right and left lateral rotation to 20 degrees. Pain was present with all forms of motion, but it did not result in additional functional loss. The examiner reported that repetitive use did not result in additional functional loss. The Veteran was negative for ankylosis of the spine, IVDS, and other neurologic abnormalities. He was positive for moderate radiculopathy of the sciatic nerve in both legs and negative for femoral radiculopathy. He did not use a device to assist with locomotion. During the Veteran's January 2021 VA examination for back conditions, the VA examiner diagnosed him with IVDS. However, he was negative for episodes of prescribed bed rest. The Veteran reported moderate to severe chronic back pain and frequent flare-ups with severe back pain. Initial ROM measurements were as follows: forward flexion to 35 degrees; extension to 10 degrees; right and left lateral flexion to 15 degrees; and right and left lateral rotation to 15 degrees. Pain was present with all forms of motion and resulted in functional loss. The Veteran was unable to perform repetitive use testing. The examiner estimated that his ROM after repetitive use or during a flare-up would be as follows: forward flexion to 20 degrees; extension to 10 degrees; right and left lateral flexion to 10 degrees; and right and left lateral rotation to 10 degrees. The Veteran was negative for ankylosis of the spine and other neurologic abnormalities. He was positive for mild to moderate radiculopathy of the sciatic and femoral nerves in both legs. He made occasional use of a wheelchair and regular use of a cane to assist with locomotion. In a September 2021 lay statement, the Veteran's daughter asserted that her father experienced chronic back pain, difficulty walking, and an abnormal gait. She stated that he had experienced severe problems for decades. In a September 2021 lay statement, the Veteran's ex-wife asserted that the Veteran experienced chronic back pain, difficulty walking, swelling, dizziness, and sleep problems due to pain. In a September 2021 statement in support of his claim, the Veteran asserted he experienced severe back pain and limitations in performing daily activities due to his disability. The Veteran's VA treatment records reflect ongoing treatment for back pain, but they are negative for symptoms, such as range of motion measurements, that support higher disability ratings. While the Veteran is competent to observe his back disability symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his back disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For the period prior to March 7, 2015, the Board finds the preponderance of the evidence is against granting a 20 percent rating. The Board finds that the February 2010 VA examination adequately assessed the severity of the Veteran's back condition, and its findings are consistent with a 10 percent rating. The Veteran and his family have reported chronic pain and limitations of motion throughout this period, and these lay reports have been given due weight. The Board does not find any evidence of ankylosis of the thoracolumbar spine, periods of prescribed bed rest, or forward flexion to 60 degrees or less, or a combined range of motion of 170 degrees or less. Accordingly, for the period from October 27, 2003 to March 7, 2015, an increased disability rating for the Veteran's back disability is denied. For the period from March 7, 2015 to January 14, 2021, the preponderance of the evidence is against finding that the Veteran's back disability resulted in favorable ankylosis of the thoracolumbar spine or in forward flexion of the thoracolumbar spine to 30 degrees or less. The Veteran's 2015 and 2019 VA examinations for back conditions were both negative for IVDS, forward flexion to 30 degrees or less, or ankylosis. Similarly, the Veteran's VA and private treatment records are negative for evidence of symptoms consistent with a higher disability rating. The Board has considered the lay statements of record but finds that they do not provide sufficient evidence of more severe symptoms and are consistent with the findings of the medical evidence of record. Based on these facts, the Board finds that the preponderance of the evidence in against the Veteran's claim. Accordingly, for the period from March 7, 2015 to January 14, 2021, the claim for a disability rating in excess of 20 percent for the Veteran's back disability is denied. Finally, for the period from January 14, 2021 onward, the Board finds the preponderance of the evidence is against finding that the Veteran's back disability resulted in unfavorable ankylosis of the thoracolumbar spine. There is no evidence of ankylosis of the spine at any point during the period on appeal. Similarly, while the January 2021 VA examination noted that the Veteran was positive for IVDS, neither the VA examination nor any other medical evidence reflects that the Veteran was prescribed periods of bed rest during the period in question. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim. Accordingly, the Veteran's claim for a disability rating in excess of 40 percent for the period from January 14, 2021 onward is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). 6. to 9. Entitlement to a disability rating in excess of 10 percent for right lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period prior to March 7, 2015 and in excess of 20 percent for the period from March 7, 2015; as well as entitlement to a disability rating in excess of 10 percent for left lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period prior to March 7, 2015 and in excess of 20 percent for the period from March 7, 2015 The Veteran asserts that his sciatic radiculopathy disabilities are more severe than is reflected by his current evaluations. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. The term "incomplete paralysis," with this and other peripheral nerve injuries, 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 ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." Neither the Rating Schedule nor the regulations provide definitions for words such as "mild," "moderate," "moderately severe," and "severe." Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In this case, the Veteran submitted a claim for service connection for his back disability in October 2003. During the Veteran's June 2004 VA examination, there was no mention of radiculopathy. May 2008 VA treatment records show treatment for back issues with subjective complaints of radicular pains, but do not show any objective findings of radiculopathy. During the Veteran's February 2010 VA examination, there was no mention of radiculopathy. February 2010 private treatment records reflect the Veteran being diagnosed with mild radiculopathies. During the Veteran's March 2015 VA examination for back conditions, the VA examiner noted moderate radiculopathy involving the sciatic nerves in both legs. The Veteran was positive for moderate numbness and intermittent pain in both legs. In a June 2015 statement by the Veteran's representative, they asserted that the Veteran experienced numbness and pain in his lower extremities due to his back conditions, and these symptoms had been present since service. During the Veteran's July 2019 VA examination for back conditions, the VA examiner noted diagnoses for radiculopathies in 2009 to 2010. They noted mild radiculopathy in both legs, resulting in moderate intermittent pain and moderate numbness. During the Veteran's January 2021 VA examination for back conditions, the VA examiner noted mild radiculopathy in both legs that resulted in mild intermittent pain, mild paresthesias or dysesthesias, and mild numbness. The Veteran's VA and private treatment records are negative for evidence of more severe symptoms consistent with higher disability ratings. The Veteran has consistently asserted that his radiculopathy is more severe than is reflected by his current disability ratings. While he is competent to observe his radiculopathy symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his radiculopathy symptoms. See Jandreau v. Nicholson, supra. The Board finds that the preponderance of the evidence is against the Veteran's claims for increased ratings. Prior to March 7, 2015, there is no evidence of symptoms more severe than mild incomplete paralysis. From March 7, 2015 onward, there is no evidence of symptoms more severe than moderate incomplete paralysis. There is no evidence during the period on appeal of moderately severe symptoms or of complete paralysis. Based on these facts, the Board finds that the preponderance of the evidence is against the Veteran's claims. Accordingly, the claims for disability ratings in excess of 10 percent for left and right lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period prior to March 7, 2015, are denied. Additionally, the claims for disability ratings in excess of 20 percent for left and right lower extremity sciatic radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, for the period from March 7, 2015, are denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 10. and 11. Entitlement to a disability rating in excess of 10 percent for left and right lower extremity femoral nerve radiculopathy associated with thoracolumbar degenerative disc disease, S/P fusion, The Veteran asserts that his bilateral radiculopathy of the femoral nerve is more severe than is reflected by his current evaluations. Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8526. (Neuritis and neuralgia of that group are evaluated under DCs 8626 and 8726.) Under these criteria, moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Under DC 8526, a 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8526. The term "incomplete paralysis," with this and other peripheral nerve injuries, 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 ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." Neither the Rating Schedule nor the regulations provide definitions for words such as "mild," "moderate," "moderately severe," and "severe." Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In this case, during the Veteran's January 14, 2021 VA examination for back conditions, the VA examiner noted bilateral radiculopathy of the femoral nerves. The examiner noted mild intermittent pain, paresthesias, and numbness in both legs and indicated the radiculopathy was mild in severity. The Veteran's VA and private treatment records are negative for evidence of moderate or more severe femoral radiculopathy. The Veteran asserts that his symptoms are more severe than is reflected by his radiculopathy disability evaluations. While he is competent to observe his radiculopathy symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his radiculopathy symptoms. See Jandreau v. Nicholson, supra. No medical evidence supports the radiculopathy disabilities being productive of moderate incomplete paralysis. Rather, these disabilities have been shown to be mild in degree. Accordingly, the Veteran's claims for increased ratings for radiculopathy of the femoral nerves of the left and right lower extremities are denied. 38 U.S.C. § 5107(b). 12. Entitlement to TDIU for the period from January 14, 2021 The Veteran asserts that his service-connected disabilities have prevented him from securing or following a substantially gainful occupation throughout the period on appeal. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); also see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (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). Additionally, entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). Thus, in adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The phrase "unable to secure and follow a substantially gainful occupation" in 4.16 has both an economic and a noneconomic component. Ray, supra. The economic component means an occupation earning more than marginal income outside of a protected environment. Id. The noneconomic component concerns whether the Veteran is able to "secure or follow" gainful employment. Id. In determining whether a Veteran can secure and follow a substantially gainful occupation, in addition to the Veteran's history, education, skill, and training, the Board should consider whether he or she "has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required" to work in a substantially gainful occupation, and "whether the Veteran has the mental ability to perform the activities required" to work in a substantially gainful occupation. Id. For purposes of TDIU, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census. Marginal employment may also be held to exist, on a facts-found basis including, but not limited to, employment in a protected environment such as a family business or sheltered workshop-when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The period prior to January 14, 2021 is addressed in the remand section of this decision. From January 14, 2021 onward, the Veteran's combined disability rating is 80 percent. From January 14, 2021, his service-connected disabilities for radiculopathy of the lower extremities, related to his lumbar spine disability and described above, are considered one disability of a single body system pursuant to 38 C.F.R. § 4.16(a). Therefore, the Veteran meets the schedular criteria for TDIU from January 14, 2021. In a December 2018 TDIU application, the Veteran indicated that he had not worked full-time since June 2003, and he became too disabled to work from that time onward. The Veteran and his family have consistently asserted that he has been too disabled to work throughout the period on appeal. See, e.g., March 2005 statement in support of claim, February 2010 buddy lay statement, August 2012 buddy lay statement, and September 2021 buddy lay statements. In an August 2021 physician's opinion, a private physician opined that the Veteran's service-connected disabilities had prevented him from securing or following a substantially gainful occupation since at least October 27, 2003. The physician offered a detailed review of the Veteran's medical history and the effect of his disabilities on his ability to work. Given the physician's expertise and the detail and quality of his rationale, the Board lends this opinion great probative weight and finds it to be the most probative evidence of record. The Board finds the evidence to be in favor of finding that the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation since January 14, 2021. Accordingly, the claim for TDIU is granted, effective January 14, 2021. REASONS FOR REMAND 1. Entitlement to TDIU for the period prior to January 14, 2021 is remanded. For the period prior to January 14, 2021, the Veteran does not meet the criteria for schedular consideration for TDIU. However, the evidence of record suggests that his service-connected disabilities may have prevented him securing or following a substantially gainful occupation. See May 2021 codesheet and August 2021 physician's opinion. As the Board cannot adjudicate entitlement to TDIU on an extraschedular basis in the first instance, referral is required. Consequently, the issue of entitlement to TDIU prior to January 14, 2021 is referred to the Director, Compensation and Pension Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Request that the Veteran submit an updated Application for Increased Compensation Based on Unemployability (TDIU) (VA Form 21-8940) that contains updated information concerning his employment during the entire period on appeal, to specifically note any job history and/or periods of unemployment. 2. Refer the case to the Director, Compensation and Pension Service for consideration of whether entitlement to TDIU prior to January 14, 2021 is warranted on an extraschedular basis. All documentation resulting from this referral must be added to the claims file prior to the readjudication of the claim. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, Associate 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.