Citation Nr: 21071703 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 10-48 910 DATE: December 1, 2021 ORDER A rating in excess of 30 percent for multiple sclerosis (MS) with complications of white lesions, cramping, pain, and difficulty walking prior to August 27, 2013, is denied. A rating in excess of 40 percent for right upper extremity weakness, residuals of MS, from January 26, 2016, onward, is denied. A rating in excess of 20 percent for right lower extremity weakness, residuals of MS, from January 26, 2016, onward, is denied. Separate disability ratings for residual manifestations of MS, to include short-term memory loss and fatigue, is denied. A total disability rating based on individual unemployability (TDIU) prior to February 15, 2014, is denied. FINDINGS OF FACT 1. Prior to August 27, 2013, the Veteran's multiple sclerosis was manifested by muscle cramps, general weakness, and fatigue. 2. From January 26, 2016, onward, the Veteran's multiple sclerosis manifested as muscle cramps, pain, fatigue, weakness, and moderate incomplete paralysis of the right upper and lower extremities. 3. The competent and probative evidence tends to show that the Veteran's symptoms of short-term memory and fatigue are separate disabilities. 4. The competent and probative evidence weighs against a finding that the Veteran's service-connected disabilities are of such nature and severity as to preclude the Veteran from securing or following substantially gainful employment for the period prior to February 15, 2014. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for MS with complications of white lesions, cramping, pain, and difficulty walking prior to August 27, 2013, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8018. 2. The criteria for a disability rating in excess of 40 percent from January 26, 2016, onward, for right upper extremity weakness, residuals of multiple sclerosis, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8513. 3. The criteria for a disability rating in excess of 20 percent from January 26, 2016, onward, for right lower extremity weakness, residuals of multiple sclerosis, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520. 4. The criteria for separate disability ratings for residual manifestations of MS, to include short-term memory loss and fatigue, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.40, 4.124a. 5. The criteria for a TDIU on an extraschedular basis prior to February 15, 2014, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1986 to April 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history and has been before the Board previously. In May 2017 and October 2017, the Board remanded the current issues on appeal, among others, for further development. Regarding the issues currently on appeal, the May 2019 Board decision granted increased disability ratings of 40 percent for the Veteran's right upper extremity weakness and 20 percent for the Veteran's right lower extremity weakness, from August 27, 2013, through January 25, 2016, and denied higher ratings from January 26, 2016, thereafter. Additionally, the Board denied a rating in excess of 30 percent for MS and a TDIU prior to August 31, 2015. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, the Court approved a Joint Motion for Partial Remand (JMPR), in which the parties agreed that the Board failed to address evidence of other uncompensated MS symptoms in finding that a rating in excess of 30 percent was not warranted. Further, the parties agreed that the Board failed to address evidence of spasticity and muscle tremors of the hands and feet. Finally, the parties agreed that the Board must address the TDIU claim on remand as part and parcel of Veteran's remanded claims. As such, in March 2021, as per the JMPR, the Board remanded the issues of an increased rating in excess of 30 percent for MS prior to August 27, 2013, a rating in excess of 40 percent for right upper extremity weakness from January 26, 2016, a rating in excess of 20 percent for right lower extremity weakness from January 26, 2016, separate disability ratings for residual manifestations of MS, to include short-term memory loss, increased urinary frequency, fatigue, and blurred vision, and a TDIU prior to February 15, 2014. Subsequently, after a September 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the agency of original jurisdiction (AOJ) provided VA examinations to consider the residual manifestations of MS, to include memory issues, fatigue, genitourinary problems, and dry eye syndrome. Additionally, the Veteran was afforded a VA examination to determine the severity of his service-connected right upper and lower extremity weakness. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). While the issues on appeal were pending, the September 2021 rating decision granted TDIU benefits, effective February 15, 2014. Although benefits were granted, this issue remains in appellate status as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Regarding the issue of separate ratings for residual manifestations of MS, the July 2021 rating decision granted service connection for bilateral dry eye syndrome with a noncompensable rating, effective January 21, 2020. Additionally, the September 2021 rating decision granted service connection for voiding dysfunction with an evaluation of 40 percent, effective June 16, 2021. As such, these matters are no longer on appeal due to the full grant of the benefits sought and they will not be discussed. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. A rating in excess of 30 percent for MS with complications of white lesions, cramping, pain, and difficulty walking prior to August 27, 2013. The Veteran seeks a higher rating for his MS. This issue stems from a December 2009 claim. See 12/30/2009 VA 21-4138; see also 7/19/2010 NOD. Multiple sclerosis is rated pursuant to 38 C.F.R. § 4.124a, DC 8018. DC 8018 provides that the minimum rating for multiple sclerosis is 30 percent. Disability ratings higher than 30 percent must be based on its residuals. With some exceptions, disability from neurological conditions and convulsive disorders and their residuals may be rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. Manifestations include psychotic symptoms, complete partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. Partial loss of one or more extremities from neurological lesions, such as those caused by multiple sclerosis, is rated by comparison with mild, moderate, severe, or complete paralysis of peripheral nerves. 38 C.F.R. § 4.124a. A note following the DC further explains how the ratings are to be applied: It is required for the minimum ratings for residuals under diagnostic codes 8000-8025, that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. 38 C.F.R. § 4.124a. In other words, the ratings schedule evaluates multiple sclerosis based on its manifestations. In accordance with the plain language of the diagnostic code, in order to receive the 30 percent minimum rating there must be at least one manifestation of multiple sclerosis. If there is at least one manifestation, then the diagnostic code acts as a ratings floor-regardless of the severity of the manifestations, the mere fact that they are present entitles a veteran to at least a 30 percent rating. If the manifestations, as evaluated pursuant to their own respective DCs or as rated by analogy, warrant a rating in excess of 30 percent, then DC 8018 is read in conjunction with 38 C.F.R. §§ 4.14 and 4.25(b), and the Veteran is assigned separate ratings that do not overlap in symptoms. After reviewing the relevant lay and medical evidence, the Board finds that for the period prior to August 27, 2013, the evidence does not tend to show that an assignment of a schedular rating in excess of 30 percent for MS is warranted. Turning to the competent medical evidence, during a February 2010 examination, the Veteran reported that he had approximately two attacks of MS per year with each attack lasting for periods of up to 14 days. Additionally, he described symptoms, such as muscle cramps, slurred speech, headaches, back pain, and constant weakness and fatigue. Further, the Veteran denied experiencing any changes in his general health or body weight or any abdominal pain, nausea, vomiting, urinary incontinence, fecal leakage, dizziness, or stroke. The objective physical examination showed normal eyes, skin, abdomen, posture, and gait. In addition, there was no evidence of any tremor, residual vision problem, or any sign of any neurological deficit. See 2/2/2010 VA Examination. VA treatment records showed that the Veteran returned to treatment for his MS in August 2013, more than three years after his 2010 VA examination. He complained of back and shoulder pain, and that he had two falls in the past three months; he thought he picked up his feet, but he did not. Additionally, he denied having any recent flare-ups of MS, headaches, dizziness, and weakness. An objective neurological examination showed that the Veteran had some mild right rotator cuff pain. However, the examination also showed that he had normal reflexes and strength, intact cranial nerves, and no muscle contractures or weakness in his bilateral upper and lower extremities. See 1/6/2016 CAPRI, at pages 44 to 47. Based on a review of the relevant competent evidence, the Board finds the preponderance of the evidence is against a finding that a schedular rating in excess of 30 percent for MS is warranted for the period prior to August 27, 2013. As mentioned above, during the period on appeal, the Veteran complained of symptoms, such as headaches and back pain. However, the record showed that those symptoms have been attributed to specific diagnoses that are unrelated to MS, to include tension headache and lumbar spine degenerative disc disease. See 1/6/2016 CAPRI, at pages 39 and 63. Additionally, as discussed above, the evidence prior to August 27, 2013, showed that the Veteran's MS manifested primarily by intermittent muscle cramps, general weakness, and fatigue, and reportedly slurred speech; however, it was not observed during clinical examination. Further, the Veteran was able to walk with a normal gait without any evidence of neurological deficits. In sum, entitlement to a rating in excess of 30 percent for MS for the period prior to August 27, 2013, is not warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8018. The Veteran's 30 percent rating for the period prior to August 27, 2013 contemplates and compensates the symptomatology associated with the service-connected MS. See 38 C.F.R. § 4.1 ("The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations."). The Board will next consider below whether higher disability ratings are warranted for weakness in the Veteran's extremities for the period since January 26, 2016. 2. A rating in excess of 40 percent for right upper extremity weakness, residuals of MS, from January 26, 2016. The Veteran contends a rating in excess of 20 percent for his right upper extremity weakness. The record shows that the Veteran's right upper extremity weakness is rated at 40 percent from August 27, 2013, pursuant to the criteria under DC 8513. Under 38 C.F.R. § 4.124a, DC 8513, a 20 percent rating is assigned for mild incomplete paralysis of "all radicular groups." A 30 percent rating is assigned for moderate incomplete paralysis in the minor extremity of such nerve groups and a 40 percent rating is assigned for moderate incomplete paralysis in the major extremity of such nerve groups. A 60 percent rating is assigned for severe incomplete paralysis in the minor extremity of such nerve groups and a 70 percent rating is assigned for severe incomplete paralysis in the major extremity of such nerve groups. An 80 percent rating is assigned for complete paralysis in the minor extremity of such nerve groups and a 90 percent rating is assigned for complete paralysis in the major extremity of such nerve groups. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. VA guidance indicates that moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. For severe incomplete paralysis, in general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. The Court recently held in Miller v. Shulkin that, "[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level." 28 Vet. App. 376, 380 (2017). Neuritis 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. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Board turns to a dictionary to define these terms. In this regard, moderate is generally defined as "tending toward the mean or average amount." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 798 (11th ed. 2003). Severe is generally defined as "of a great degree" or "serious." Id. at 1140. Moderately severe, therefore, could be construed as falling beyond or above the mean or average amount while falling short of being a great degree or serious. The Board finds that a rating in excess of 40 percent for the Veteran's right upper extremity weakness is not warranted. Turning to the competent medical evidence, VA treatment records generally showed that the Veteran reported that pain, spasms, cramps, weakness, tingling, and numbness in his right side were worsening progressively. See 4/6/2016 CAPRI, at page 82; see also 1/30/2020 CAPRI, at page 8. However, he denied having any relapse of his MS. An objective neurological examination from January 2016 showed that the Veteran had decreased motor strength (4/5), reflexes, and sensation to light touch and temperature in the right upper extremity. See 4/6/2016 CAPRI, at pages 85-86. Additionally, a November 2017 neurological examination showed that the Veteran's bilateral upper extremities were getting weaker, he had spasticity in his bilateral upper and lower extremities, and he had muscle tremors. See 11/22/2019 CAPRI, at pages 385 and 501. Further, a January 2018 VA neurology note showed that the Veteran had difficulty with fine finger movements. See 1/27/2018 CAPRI, at pages 21 and 23. However, medical follow-ups/appointments generally showed that the Veteran had normal coordination, reflexes, and sensation. See 6/30/2017 CAPRI, at pages 24 and 26; see also 1/30/2020 CAPRI, at pages 10 and 11. A letter from Dr. M.A.Z., M.D., showed that the Veteran had a history of MS and weakness in the right upper extremity, which caused painful muscle spasms and memory problems. See 7/11/2016 Third Party Correspondence. Additionally, in a January 2018 disability benefits questionnaire, Dr. M.A.Z. reported that the Veteran's fine finger movements were "slightly impaired." However, Dr. M.A.Z. also reported that the Veteran's motor strength was close to normal, except for the left lower extremity. Finally, Dr. M.A.Z. opined that the Veteran required assistance with medication management and getting in and out of the bathtub, but otherwise remained independent in his activities of daily living, such as feeding, preparing meals, and managing his own financial affairs. See 1/17/2018 VA 21-2680. The Veteran underwent a VA MS examination in February 2016. The Veteran is right hand dominant. The neurologic examination showed that the Veteran had decreased right upper extremity strength (4/5). However, the Veteran also had normal reflexes and sensation. The examiner described the Veteran's neurological findings as showing moderate muscle weakness in the Veteran's right upper extremity. Finally, as functional impact, the examiner reported that the Veteran was unable to drive due to right and left sided weakness. See 2/16/2016 C&P Examination. In August 2016 the Veteran underwent a VA peripheral nerves conditions examination. He was diagnosed with bilateral upper and lower extremities neuropathy. The Veteran reported he experienced severe cramping and tingling in his hands. Additionally, he reported he experienced weakness and fatigue. The examination showed symptoms, such as severe bilateral upper and lower extremity intermittent and constant pain, numbness, and paresthesias/dysesthesias, and severe cramping. The objective examination showed that the Veteran had normal muscle strength, reflexes, and Phalen's and Tinel's test results. Additionally, he had decreased bilateral hand sensation, and no muscle atrophy or trophic changes. Regarding the upper extremity nerves, the examiner stated that the Veteran had mild bilateral incomplete paralysis of the radial nerve, median nerve, and ulnar nerve. Finally, as functional impact, the examiner stated that the Veteran would experience a partial impairment in physical activities of employment, such as heavy lifting, pushing, pulling, carrying, running, jumping, climbing, and walking long distances. See 8/17/2016 C&P Examination. The Veteran was afforded another VA MS examination in June 2021. The examination showed that the Veteran had normal reflexes and sensation and decreased left grip strength and bilateral shoulder and pinch strength. The examiner stated that the Veteran had moderate right upper extremity weakness. See 6/24/2021 C&P Examination. The most recent VA MS examination was in August 2021. The examination showed normal reflexes and sensation. The examiner stated that the Veteran had mild right upper and lower extremity muscle weakness; however, considering the evidence of right upper and lower extremity symptoms of spasticity and tremors, the examiner concluded that the Veteran's right upper extremity weakness is moderate in severity. In addition, the examiner opined that the right upper extremity symptoms of spasticity, tremors, and fatigue are not separate disabilities but are direct symptoms of MS. The examiner further opined that the Veteran has a visible right upper extremity tremor at rest. See 8/16/2021 C&P Examination. After review of the competent lay and medical evidence, the Board finds that the preponderance of the evidence is against a finding that a schedular rating in excess of 40 percent from January 26, 2016, for the Veteran's right upper extremity weakness is warranted. In this regard, as mentioned above, the evidence for the period from January 26, 2016, onward, shows that the Veteran has had slight decrease in motor strength and his right upper extremity has caused partial impairment in his ability to lift heavy objects, push, pull, and carry. Additionally, as mentioned above, the February 2016, June 2021, and August 2021 (after considering the upper extremity symptoms of spasticity and tremors) VA MS examinations showed that the Veteran had moderate right upper extremity incomplete paralysis. However, the criteria for a higher severe incomplete paralysis are not met. In this regard, the evidence shows that the Veteran has retained his ability to perform his own activities of daily living. In addition, the objective medical examination results throughout the appeal period generally showed that the Veteran's decreased in right upper extremity motor strength was no less than 4/5. Furthermore, medical examinations, as discussed in greater detail above, throughout the appeal period generally showed that the Veteran had normal coordination, reflexes, and sensation. In sum, entitlement to a rating in excess of 40 percent for right upper extremity weakness for the period from January 26, 2016, onward, is not warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8513. 3. A rating in excess of 20 percent for right lower extremity weakness, residuals of MS, from January 26, 2016. The Veteran contends a rating in excess of 20 percent for his right lower extremity weakness. The record shows that the Veteran's right lower extremity weakness is rated at 20 percent from August 27, 2013, pursuant to the criteria under DC 8520. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 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 Board finds that a rating in excess of 20 percent for the Veteran's right lower extremity weakness is not warranted. Turning to the competent medical evidence, VA treatment records generally showed that the Veteran reported that pain, spasms, cramps, weakness, tingling, and numbness in his right side were worsening progressively. Additionally, the Veteran reported that he had sometimes tripped on the toes on his right foot and had fallen. Further, he stated that he uses walls or furniture for balance when his cane is not available. See 4/6/2016 CAPRI, at page 82; see also 11/22/2019 CAPRI, at pages 396 and 501; 1/30/2020 CAPRI, at page 8. An objective neurological examination from January 2016 showed that the Veteran had decreased motor strength (4/5), reflexes, sensation to light touch and temperature in the right lower extremity, a slight limp, and ambulated with a cane. See 4/6/2016 CAPRI, at pages 85 through 87. Additionally, a November 2017 neurological examination showed that the Veteran had spasticity in his bilateral lower extremities, and muscle tremors. See 11/22/2019 CAPRI, at pages 385 and 501. Further, a January 2020 examination showed that the Veteran "ha[d] some give away weakness distally in both feet, especially on plantar flexion and dorsiflexion." Additionally, he had a slightly unsteady spontaneous gait and used a cane. See 1/30/2020 CAPRI, at pages 10 and 11. However, medical examinations generally showed that the Veteran had normal coordination, reflexes, and sensation. See 6/30/2017 CAPRI, at pages 24 and 26; see also 1/30/2020 CAPRI, at pages 10 and 11. A letter from Dr. M.A.Z., showed that the Veteran had a history of MS and weakness in the right lower extremity, which caused poor balance and painful muscle spasms. See 7/11/2016 Third Party Correspondence. Additionally, in a January 2018 disability benefits questionnaire, Dr. M.A.Z. reported that the Veteran used a cane "all the time" for ambulation. However, Dr. M.A.Z. also reported that the Veteran's motor strength was close to normal, except for the left lower extremity. Finally, Dr. M.A.Z. opined that the Veteran required assistance with medication management and getting in and out of the bathtub, but otherwise remained independent in his activities of daily living, such as feeding, preparing meals, and managing his own financial affairs. See 1/17/2018 VA 21-2680. The Veteran underwent a VA MS examination in February 2016. The neurologic examination showed that the Veteran had an abnormal gait and decreased right lower extremity strength (4/5). However, the Veteran also had normal reflexes and sensation. The examiner described the Veteran's neurological findings as showing moderate muscle weakness in the Veteran's right lower extremity. The Veteran used a cane constantly. Finally, as functional impact, the examiner reported that the Veteran was unable to drive due to right and left sided weakness. See 2/16/2016 C&P Examination. In August 2016 the Veteran underwent a VA peripheral nerves conditions examination. The Veteran reported he experienced weakness, severe cramping and tingling in his feet, balance issues, and difficulty raising his feet. The examination showed symptoms, such as severe bilateral lower extremity intermittent and constant pain, numbness, and paresthesias/dysesthesias, and severe cramping. The objective examination showed that the Veteran had normal muscle strength, reflexes, and gait. Additionally, he had decreased bilateral ankle, and feet sensation, and no muscle atrophy or trophic changes. Regarding the lower extremity nerves, the examiner stated that the Veteran had mild bilateral incomplete paralysis of the sciatic nerve. The Veteran used a cane constantly. Finally, as functional impact, the examiner stated that the Veteran would experience a partial impairment in physical activities of employment, such as running, jumping, climbing, and walking long distances. See 8/17/2016 C&P Examination. A January 2020 MS disability benefits questionnaire showed that the Veteran had normal reflexes and sensation, decreased hip strength, and moderate right lower extremity weakness. See 1/30/2020 C&P Examination. An additional VA peripheral nerves condition examination was afforded in January 2020. The examination showed symptoms, such as mild right lower extremity numbness and paresthesias/dysesthesias. The objective examination showed that the Veteran had normal muscle strength, reflexes, and sensation, and no muscle atrophy or trophic changes. He had an unsteady, slow, and deliberate gait. Regarding the lower extremity nerves, the examiner stated that the Veteran had right moderate incomplete paralysis of the sciatic nerve. The Veteran used a cane occasionally. Finally, as functional impact, the examiner stated that the Veteran would experience MS exacerbations that would severely limit walking and productivity. See 1/30/2020 C&P Examination. The Veteran was afforded another VA MS examination in June 2021. The examination showed that the Veteran had normal reflexes, sensation, and right lower extremity strength. The examiner stated that the Veteran had moderate bilateral lower extremity muscle weakness. See 6/24/2021 C&P Examination. The most recent VA MS examination was conducted in August 2021. The examination showed normal reflexes, sensation, and right lower extremity strength. The examiner further opined that the Veteran has an intentional tremor in his right lower extremity; evident only when he is trying to focus and move. The examiner stated that the Veteran had mild right lower extremity muscle weakness; however, considering the evidence of right lower extremity symptoms of spasticity and tremors, the examiner concluded that the Veteran's right lower extremity weakness is moderate in severity. See 8/16/2021 C&P Examination. After review of the competent lay and medical evidence, the Board finds that the preponderance of the evidence is against a finding that a schedular rating in excess of 20 percent from January 26, 2016, for the Veteran's right lower extremity weakness is warranted. In that regard, the Veteran reported, and the record showed that he experienced balance problems, an abnormal gait, and the need of a cane for ambulation. Additionally, he reported that he sometimes trips over his right foot and needs to hold onto furniture while walking to avoid falling. Additionally, the August 2016 VA examiner opined that the Veteran had restrictions in his ability to run, jump, climb, and walk long distances. Further, as mentioned above, the February 2016, June 2021, and August 2021 (after considering the upper extremity symptoms of spasticity and tremors) VA MS examinations showed that the Veteran had moderate right lower extremity incomplete paralysis. However, the criteria for a higher severe incomplete paralysis are not met. Although the evidence shows that the Veteran has significant impairment in his ability to ambulate, the record generally shows that the Veteran retained sensation in his right lower extremity, that motor strength loss has not been less than 4/5, and normal coordination and reflexes. Moreover, the Veteran reported that he remained independent in most of his activities of daily living. When viewing the relevant evidence and overall disability picture of the right lower extremity, the Board finds that the above evidence does not tend to show neurological symptomatology falling beyond or above the mean or average amount while falling short of being a great degree or serious. In other works, the evidence does not show that the Veteran has the physical manifestations required for a higher rating for the Veteran's paralysis of the sciatic nerves. As such, the criteria for a disability rating higher than 20 percent under DC 8520 for the Veteran's right lower extremity weakness from January 26, 2016, are not met. In sum, entitlement to a rating in excess of 20 percent for right lower extremity weakness for the period from January 26, 2016, onward, is not warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8520. 4. Separate disability ratings for residual manifestations of MS, to include short-term memory loss and fatigue. The Veteran contends that he experiences symptoms, such as short-term memory loss and fatigue due to his service-connected MS disability. See 1/6/2016 CAPRI, at pages 5 and 34; see also 5/12/2017 CAPRI, at page 33; 9/16/2013 CAPRI, at page 34; 4/6/2016 CAPRI, at page 82. For background, the March 2021 Board remand, as per the approved JMPR, directed the AOJ to consider whether separate ratings were warranted for the symptoms of short-term memory and unusual fatigue with hot weather. Turning to the medical evidence, regarding the Veteran's short-term memory loss, VA treatment records showed that in September 2013 the Veteran complained that he "sometimes forgets things." However, the objective neurological examination showed that the Veteran was able to recall 3 out of 3 objects after 3 minutes. See 1/6/2016 CAPRI, at pages 34 and 38. Additionally, a November 2017 neurological examination showed that the Veteran had short-term memory challenges at times and an intact long-term memory. See 1/27/2018 CAPRI, at page 39. However, in August 2018 the Veteran was administered the Wechsler Memory Scale 4th Edition, Logical Memory and Visual Reproduction test, among other tests, which showed that the Veteran's memory seemed to be intact at baseline for his age. See 11/22/2019 CAPRI, at pages 298 and 301. Further, March 2020 and April 2020 objective examinations showed that the Veteran had intact recent and remote memory. See 4/4/2020 CAPRI, at page 52; see also 3/9/2021 CAPRI, at page 237. Moreover, the June 2021 VA examiner opined that his short-term memory loss was less likely than not proximately due to the Veteran's service-connected MS. As rationale, the examiner stated that there was no evidence of a memory impairment due to MS or that his MS impacted his mental health. See 6/24/2021 C&P Examination. In addition, the August 2021 VA examiner stated that there was no objective evidence of short-term memory loss. See 8/13/2021 C&P Examination. Regarding the Veteran's fatigue, as mentioned above, the August 2021 VA examiner opined that the Veteran's symptom of fatigue is not a separate disability, but is a direct symptom of MS. See 8/16/2021 C&P Examination. Thus, based on the evidence above, the Board finds that separate disability ratings for short-term memory loss and fatigue, as residuals of MS, are not warranted. 5. A TDIU prior to February 15, 2014. The Veteran's claim for a TDIU was received in July 2016. See 7/11/2016 VA 21-8940. The October 2016 rating decision granted a TDIU effective from August 31, 2015. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran's service-connected disabilities include left upper extremity weakness (30 percent from August 27, 2013, and 60 percent from June 16, 2021); posttraumatic stress disorder (50 percent from August 31, 2015); right upper extremity weakness (40 percent from August 27, 2013); voiding dysfunction (40 percent from June 16, 2021); MS (30 percent from April 20, 2005 to August 27, 2013); right lower extremity weakness (20 percent from August 27, 2013); left lower extremity weakness (20 percent from August 27, 2013); tinnitus (10 percent from April 20, 2005); hypertension (10 percent from August 31, 2015); bilateral tinnitus (10 percent from May 12, 2016); left wrist disability (noncompensable from April 20, 2005); bilateral hearing loss (noncompensable from May 12, 2016); bilateral dry eye syndrome (noncompensable from January 21, 2020). For the purpose of a TDIU analysis, the disabilities in the Veteran's extremities are treated as a single 70 percent disability because they arise out of common etiology. 38 C.F.R. §§ 4.16(a). The basic threshold for eligibility for a TDIU is met since August 27, 2013, but, prior to this date, the Veteran had a combined evaluation of 40 percent from April 2005. For background, as mentioned above, the October 2016 rating decision granted a TDIU effective August 31, 2015. In March 2021 the Board, as per the approved June 2020 JMPR, remanded the issue of a TDIU as inextricably intertwined with the remanded increased rating claims on appeal. Finally, the September 2021 rating decision granted an earlier effective date for a TDIU from February 15, 2014. As referenced above, prior to August 27, 2013, the basic criteria for a TDIU pursuant to C.F.R. § 4.14(a) are not met. However, entitlement to a TDIU for the period before August 27, 2013, may be referred to the Director of Compensation Service for consideration of an award on an extra-schedular basis if the evidence shows that the Veteran's disabilities resulted in the Veteran being unemployable regardless of the fact that the disability ratings assigned for his disabilities did not meet the criteria under 38 C.F.R. §§ 4.16(a). 38 C.F.R. §§ 4.16(b). After reviewing the relevant lay and medical evidence, the Board finds that the competent and probative evidence is against a finding that the Veteran is entitled to a TDIU for any part of the appeal period before February 15, 2014, on either a schedular or extra-schedular basis. The Veteran, in his July 2016 formal TDIU application, reported that he stopped working in 2013. See 7/11/2016 VA 21-8940. However, the employment information obtained in October 2016 from the Veteran's former employer, a public school, showed that the Veteran maintained ongoing fulltime employment (a daily 8 hours and weekly 40 hours) as a public-school security officer from June 9, 2008, through February 14, 2014. Additionally, payroll information provided by the Veteran's former employer stated that the Veteran's last paycheck was dated February 28, 2014. Furthermore, the employer specifically stated that the Veteran's termination was "[n]ot disability related." Moreover, the employer reported that the Veteran had no workplace concessions due to disability. See 10/26/2016 VA 21-4192. The Board notes that this information appears to reflect information contained in the employer's official business records and is not contradicted by any other information in the record. As such, the information from the Veteran's employer carries substantial probative weight and is persuasive as to the Veteran's dates of employment. Given that the evidence shows that the Veteran maintained fulltime employment through February 14, 2014, the Veteran is not entitled to a TDIU any earlier than that date. As discussed above, the evidence showed that the Veteran's MS manifested as neurological pain, weakness, fatigue, and cramping in his upper and lower extremities from August 2013. However, despite his symptoms, the Veteran was able to maintain ongoing fulltime employment through February 14, 2014. Also, during this period, the Veteran was in receipt of VA compensation for his MS at a 30 percent disability rating to account for loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. In addition, as mentioned above, the evidence showed that the Veteran was able to maintain a high degree of function that included the ability to perform his duties without workplace concessions and for a weekly 40 hours through February 14, 2014. Further, the Veteran's termination was "[n]ot disability related." As such, the evidence is against a finding that the Veteran's disabilities precluded him from securing and following substantially gainful employment prior to February 15, 2014. 38 C.F.R. § 4.16. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.