Citation Nr: 21076200 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-19 108 DATE: December 22, 2021 ORDER Entitlement to an earlier effective date of service connection for right lower extremity radiculopathy is denied. Entitlement to an earlier effective date of service connection for left lower extremity radiculopathy is denied. From August 21, 2018, entitlement to an initial rating of 40 percent, but no greater, for right lower extremity radiculopathy is granted. From August 21, 2018, entitlement to an initial rating in excess of 40 percent for left lower extremity radiculopathy is denied. From September 14, 2019, entitlement to a total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The correct facts, as known at the time, were before the VA adjudicators in April 1999 and the statutory and regulatory provisions extant at the time were correctly applied with regard to not awarding a separate rating for right lower extremity radiculopathy. 2. The correct facts, as known at the time, were before the VA adjudicators in April 1999 and the statutory and regulatory provisions extant at the time were correctly applied with regard to not awarding a separate rating for left lower extremity radiculopathy. 3. From August 21, 2018, the Veteran's right lower extremity radiculopathy is characterized by moderately severe, incomplete paralysis. 4. From August 21, 2018, the Veteran's left lower extremity radiculopathy is characterized by moderately severe, incomplete paralysis. 5. From September 14, 2019, the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. CONCLUSIONS OF LAW 1. Regarding right lower extremity radiculopathy, the criteria for an earlier effective date of service connection based on clear and unmistakable error in the April 1999 rating decision have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. Regarding left lower extremity radiculopathy, the criteria for an earlier effective date of service connection based on clear and unmistakable error in the April 1999 rating decision have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 3. From August 21, 2018, the criteria for an initial disability rating of 40 percent, but no greater, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.123, 4.124a, Diagnostic Code 8520. 4. From August 21, 2018, the criteria for an initial disability rating in excess of 40 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.123, 4.124a, Diagnostic Code 8520. 5. From September 14, 2019, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from June 1978 to July 1988 and from February 1992 to November 1998. This matter is on appeal from a January 2019 rating decision. In March 2021, the Veteran presented sworn testimony at a hearing before the undersigned. This matter was previously remanded in April 2021. On remand, in a September 2021 rating decision, the RO granted entitlement to a TDIU, effective May 31, 2020. A request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper. Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. As such, this issue remains before the Board. Earlier Effective Date Legal Background Once a decision becomes final, it may only be revised by a showing of clear and unmistakable error (CUE). 38 C.F.R. §§ 3.104, 3.105. Where evidence establishes CUE, the prior decision will be reversed or amended. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 31314 (1992). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 38 C.F.R. § 3.105(a)(1)(i). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 4344 (1993). Failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). Earlier Effective Date Factual Background As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of the motion for revision. In April 1999, the RO awarded service connection for a back disorder. The Veteran argues that the RO committed CUE by not awarding separate ratings for right and left lower extremity radiculopathy. In support of this, in November 2018 the Veteran submitted a June 1997 service treatment record, not previously of record, in which the Veteran "describes 40% of her pain being in the midline of her back ... and 60% of it being in her buttocks, thighs, posterior calves, and heels, bilaterally." Service treatment records consistently indicate radiculopathy during service. A July 1980 service treatment describes low back pain that "radiates down [right] leg." A March 1997 service treatment record suggests bilateral radicular aching associated with the Veteran's low back pain. A June 1997 service treatment record describes "postop had [left] L5 nerve root irritation [symptoms]." A June 1997 service treatment record indicates left lower extremity leg pain. A separate June 1997 service treatment record describes left foot dysesthesias and pain. In an August 1997 service treatment record, the Veteran describes "some [left] leg radiation ...." An April 1998 service treatment record describes reduced back pain with "occasional dorsal foot pain on [left]" following her surgery. A May 1998 report of medical history, filled out upon retirement, indicates "nerve injury L-5 S/P spinal fusion" and "arthritis L5-/S-1 [left]." In January 1999, the Veteran filed claim for benefits. As relevant to this appeal, she listed "chronic lower back pain" and described how a June 1997 spinal fusion resulted in "complications of L5 damage causing weakness and pain [left] lower leg." An April 1999 VA examination indicates forward lumbar flexion of 70 degrees with "limited motion in the lumbar spine." There is a diagnosis of "[r]esidual left L5 radiculopathy, primarily sensory, moderate." This diagnosis is "what is described in her service medical records, as a persistent left L5 radiculopathy." The examiner further states: "Neurologic examination demonstrates a dermatomal pattern following L5 on the left lower extremity, which courses around the posterolateral aspect of the thigh, down the lateral aspect of her leg, extending anteriorly, and into the dorsal lateral aspect of her foot, and with some plantar sensibility decreased as well. This is primarily sensory." Additionally, there is "right sided lumbar spine and pelvic type pain, due to the sacroiliac joint arthritis and sclerosis." In April 1999, the RO awarded service connection for "postoperative L4-L5-S1 interbody and lateral mass fusion, healed with residual mechanical lower back pain, moderate (claimed as low back pain, status post fusion with left lower leg weakness and pain)." The RO assigned a 20 percent rating under Diagnostic Code 5295 based on "muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position." This decision notes "a dermatomal pattern following L5 on the left lower extremity" and that "knee jerks are present bilaterally and the right ankle is noted as well." As such, the RO was cognizant of the Veteran's lower extremity impairment but selected former Diagnostic Code 5295, rather than former Diagnostic Code The April 1999 decision was not appealed and became final. In September 2012, the Veteran filed a claim of service connection for bilateral lower extremity radiculopathy. In October 2013, the RO denied that claim. That decision was not appealed and is final. On August 21, 2018, the Veteran submitted an electronic Intent to File application. In January 2019, the RO awarded service connection for bilateral lower extremity radiculopathy from August 21, 2018. The Veteran argues that the RO committed CUE by not awarding service connection for bilateral lower extremity radiculopathy in April 1999. Earlier Effective Date § 3.400 Analysis 1. Entitlement to an earlier effective date of service connection for right lower extremity radiculopathy is denied. 2. Entitlement to an earlier effective date of service connection for left lower extremity radiculopathy is denied. As described, in April 1999 the RO granted service connection for a back disorder, and that decision was not appealed and is final. In October 2013, the RO denied a claim of service connection for bilateral lower extremity radiculopathy, a decision that was also not appealed and is final. On August 21, 2018, the Veteran submitted an intent to file application, and in January 2019 the RO awarded service connection for bilateral lower extremity radiculopathy from August 21, 2018. The effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). As such, the RO assigned the earliest possible effective date for its grant of the reopened claim, which as noted above was received by VA on August 21, 2018. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Because the Veteran's radiculopathy is related to her back disorder, service connection was established. It does not follow, however, that because service connection is warranted that the effective date of service connection be the day following service or the date that the original claim was filed. Doing so would render meaningless many of the provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Indeed, in Sears, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pursuant to 38 C.F.R. § 3.400(q)(1)(ii), which it declared was a valid gap-filling regulation, there was no conflict between 38 U.S.C.A. §§ 5108 and 5110, and thus the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. Id. at 1332. Thus, under the law, there is no basis to assign an earlier effective date for service connection for radiculopathy of the right or left lower extremity under § 3.400. Earlier Effective Date CUE Analysis As none of the elements of CUE are met, the Board finds that the RO did not commit CUE in April 1999 by failing to award an earlier effective dates or separate ratings for bilateral radiculopathy. Regarding Element 1(a), the Board finds that the correct facts were before the Board at the time of the April 1999 rating decision. As described, at least two service treatment records noted bilateral radiculopathy, dated July 1980 and March 1997. There are even more records that specifically reference left lower extremity radiculopathy. Further, the March 1999 VA examination describes bilateral radiculopathy symptoms, including right ankle jerk. These symptoms are discussed in the April 1999 rating decision awarding service connection for "postoperative L4-L5-S1 interbody latera mass fusion, healed with residual mechanical lower back pain, moderate (claimed as low back pain, status post fusion with left lower leg weakness and pain)." In light of these facts, the Board finds that the existence of bilateral radiculopathy was known and acknowledged by the RO at the time of the April 1999 rating decision. Regarding Element 1(b), the Board finds that the April 1999 rating decision did not incorrectly apply the statutory or regulatory provisions in existence at the time. Importantly, in April 1999 there were no provisions that provided separate ratings for radiculopathy. Rather, at that time, a back disorder with radiculopathy symptoms was rated under Former Diagnostic Code 5293. Effective September 23, 2002, the rating criteria for Former Diagnostic Code 5293 was amended to permit evaluation based "either on the total duration of incapacitating episodes over the past twelve months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluation of all other disabilities, whichever method results in the higher evaluation." See 67 Fed. Reg. 54345 (Aug. 22, 2002). Effective September 26, 2003, a General Rating Formula for Diseases and Injuries of the Spine was created, under which "any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code." See 68 Fed. Reg. 51454 (Aug. 27, 2003). Taken together, at the time of the April 1999 rating decision, there was no regulatory basis for rating a veteran's radiculopathy symptoms separate from a back disorder for which service connection was awarded. It was not until September 23, 2002, that regulations were implemented to permit separate ratings for radiculopathy. As the April 1999 rating decision preceded September 23, 2002, it cannot be said that the April 1999 rating decision incorrectly applied the statutory or regulatory provisions in existence at the time by not awarded separate ratings for radiculopathy. Regarding the second CUE element, the Board finds that there was no undebatable error in not assigning separate ratings for radiculopathy in April 1999. Bilateral radiculopathy was noted in the service treatment records before the RO, in the March 1999 VA examination, and in the April 1999 rating decision. At the time of that decision, there was no regulatory framework for rating radiculopathy separately from a back disorder for which service connection had been awarded. For these reasons, it is not undebatable that the RO committed an error for not awarding separate ratings for radiculopathy in April 1999. Also, under the second CUE element, the Board further finds that it is not undebatable that the Veteran should have been awarded an initial rating in excess of 20 percent under former Diagnostic Code 5295. Former Diagnostic Code 5295 provided compensation for lumbosacral strain. 38 U.S.C. § 4.71a. A 0 percent rating is provided for slight, subjective symptoms only. Id. A 10 percent rating is provided for characteristic pain on motion. Id. A 20 percent rating is provided for muscle spasm on extreme forward bending, unilateral loss of lateral spine motion in the standing position. Id. A 40 percent rating is provided for severe lumbosacral strain with listing of whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Id. The March 1999 VA examination indicates that the Veteran's "[h]eel to toe gait is normal," that she displays forward flexion of 70 degrees, and that the Veteran shows "no evidence of any significant motor dysfunction at present." Her "overall functional impairment due to her back problem [is] moderate to moderately severe." Importantly, there is no evidence of "severe lumbosacral strain with listing of the whole spine," or any of the other criteria for 40 percent rating, so as to support a rating in excess of 20 percent under former Diagnostic Code 5295. For this reason, the Board finds that in April 1999 it was not undebatable error for the RO to assign an initial rating of 20 percent under former Diagnostic Code 5295. The Board further finds that in April 1999 the RO did not commit an undebatable error in not assigning the Veteran an initial rating in excess of 20 percent under a different diagnostic code. Former Diagnostic Code 5292 provided compensation for limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a. A 10 percent rating was provided for slight limitation of motion. Id. A 20 percent rating was provided for moderate limitation of motion. Id. A 40 percent rating was provided for severe limitation of motion. Id. As noted, the March 1999 VA examination indicates forward flexion of 70 degrees and "no evidence of any significant motor dysfunction at present." In light of these findings, and no lay or medical evidence to the contrary at the time, the Board finds that in April 1999 it was not an undebatable error to not assign the Veteran an initial rating of 40 percent under former Diagnostic Code 5292. The same is true under former Diagnostic Code 5293. That code provided compensation for intervertebral disc disease (IVDS). 38 C.F.R. § 4.71a. A 0 percent rating was provided for postoperative, cured IVDS. Id. A 10 percent rating was provided for mild IVDS. Id. A 20 percent rating was provided for moderate IVDS with recurring attacks. Id. A 40 percent rating was provided for severe IVDS with recurring attacks and intermittent relief. Id. A 60 percent rating was provided for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. Id. Even if the rating criteria for former Diagnostic Code 5293 were applied, which specifically contemplated sciatic neuropathy, the Board finds that it was not an undebatable error to assign a rating of 20 percent. It is not undebatable that these symptoms constitute evidence of "severe IVDS with recurring attacks and intermittent relief" so as to support a 40 percent rating under Former Diagnostic Code 5293, in light of her normal gait, forward flexion of 70 degrees, and overall severity of moderate to moderately severe. It follows that it is not undebatable that there is "little intermittent relief" from her symptoms so as to support a rating of 60 percent under former Diagnostic Code 5293. Further, because sciatic neuropathy was not separate rated under Diagnostic Code 8520 but under former Diagnostic Code 5293, at the time of the April 1999 rating decision, compensation for lower extremity impairment would have been under former Diagnostic Code 5293. For these reasons, the Board finds that it was not an undebatable error to assign a rating of 20 percent in April 1999. Regarding the third element, the Board finds that it would not have manifestly changed the outcome had the Veteran been rated under a different diagnostic code in April 1999. As described, at that time, there were no symptoms that would have provided for an initial rating in excess of 20 percent for the Veteran's back disorder with radiculopathy. For these reasons, the Board finds that the three elements of CUE are not met. The claims of entitlement to an earlier effective date of service connection for right and left lower extremity radiculopathy, based on CUE, are denied. Further, the Board finds that reconsideration is not warranted based on the November 2018 receipt of a service treatment record not associated with the Veteran's claims file at the time of the April 1999 rating decision. If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. 38 C.F.R. § 3.156(c)(1). "[I]n order to be 'relevant,' a record must speak to a matter in issue, in other words, a matter in dispute." Kisor v. McDonough, 995 F.3d 1316, 1319 (Fed. Cir. 2020). An additional service treatment record was first received in November 2018, and was listed as evidence in the January 2019 rating decision that awarded service connection for bilateral radiculopathy. As described, this record, dated June 1997, notes bilateral radiculopathy. However, the Board finds that an earlier effective date prior to August 21, 2018, is not warranted. Service treatment records indicating bilateral radiculopathy, dated July 1980 and March 1997, were of record at the time of the April 1999 rating decision. The presence of bilateral radiculopathy was therefore not at issue at the time of the April 1999 rating decision. Consistent with this, a symptom of right lower extremity radiculopathy right ankle jerk was noted in the March 1999 examination and the April 1999 rating decision. That decision, then, awarded service connection for a back disorder with bilateral radiculopathy symptoms. For these reasons, it cannot be said that the presence of bilateral radiculopathy during service was in dispute at the time of the April 1999 rating decision. For these reasons, the Board finds that the service treatment record submitted in November 2018 is not relevant and reconsideration is not warranted. Accordingly, VA did not need to reconsider the Veteran's claim pursuant to § 3.156(c) because in April 1999 the Veteran's back disorder was rated based on bilateral radiculopathy symptoms and bilateral radiculopathy was already noted in other records. Although new service records pertained to bilateral radiculopathy during service, that was not why separate compensable ratings were not assigned for these disorders. 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 percentage ratings are based on the average impairment of earning capacity as a result of a 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. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Under that code, a 10 percent rating is provided for mild, incomplete paralysis. Id. A 20 percent rating is provided for moderate, incomplete paralysis. Id. A 40 percent rating is provided for moderately severe, incomplete paralysis. Id. A 60 percent rating is provided for severe, incomplete paralysis with muscular atrophy. Id. An 80 percent rating is provided for complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement is possible for muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured 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 ratings for the peripheral nerves are for unilateral involvement. Id. The words "slight," "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Pursuant to 38 C.F.R. § 4.123, the maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis, i.e., no more than 40 percent. In light of the foregoing, and especially given the frequency that the veteran receives epidural injections to treat his right lower extremity pain, the Board finds that he warrants a 40 percent rating under DC 8520, but no more. Radiculopathy Evidence On August 21, 2018, the Veteran filed a claim of service connection for bilateral radiculopathy. In January 2019, the RO awarded service connection for bilateral radiculopathy from August 21, 2018, with initial ratings of 10 and 20 percent for the right and left lower extremities, respectively. The Veteran is now rated at 20 and 40 percent for the right and left lower extremities, respectively. All ratings are under Diagnostic Code 8520. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). In the December 2018 VA back examination the Veteran describes "a constant dull pain in her lateral side of the leg radiating down to the ankle, foot, toes," such symptoms being worse on the left side than the right. Taking Lyrica three times daily "has reduced her daily [bilateral leg] spasms to 1-3 times per week," said spasms accompanied by "extreme pain." Because of the radiculopathy "she has difficulty walking for long period of time" and "has had a few falls at her workplace in the recent past." Right lower extremity radiculopathy is characterized by mild constant pain, no intermittent pain, mild paresthesias and/or dysesthesias, mild numbness, and an overall severity of mild, incomplete paralysis. Left lower extremity radiculopathy is characterized by moderate constant pain, no intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, and an overall severity of moderate, incomplete paralysis. Muscle strength is normal for both limbs but senses are decreased. Radiculopathy impacts her ability to work in that she has difficulty walking for extended periods and has fallen due to balance issues. In a January 2019 statement, the Veteran states that since her 1997 surgery she has "been having severe muscle spasms (Charlie horse like) pain along the left > right L5 nerve root every day." In a February 2019 statement, the Veteran states that since her 1997 surgery she has "continued to have severe bilateral leg pain and muscle spasms along with weakness left side greater than right every day." In a March 2019 statement, the Veteran states that since her 1997 surgery she has "continued to have moderate/severe lower leg pain and weakness." Currently, she is "[u]nable to walk any extended distances due to increased lower leg pain and weakness." An April 2019 VA nerves examination indicates that nerve spasms are worse than nerve pain. Symptoms exist on both sides, with the right being worse than the left. Right lower extremity radiculopathy is characterized by mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, mild numbness, and an overall severity of mild, incomplete paralysis. Left lower extremity radiculopathy is characterized by moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, and an overall severity of moderately severe, incomplete paralysis. Senses are decreased for the right lower leg ankle and right foot toes. Senses are absent for the corresponding left groups. Regarding the ability to work, radiculopathy results in "[d]iminished endurance," impairment in "any job that routinely requires prolonged standing or walking about," and is "[m]edically incompatible with physical labor employment." In her August 2019 VA back examination, the Veteran describes a sharp, stabbing pain radiating to bilateral lower extremities. This pain is aggravated by prolonged sitting, "prolonged walking, any kind of running, ascending or descending stairs, [and] any kind of lifting." As a result of this pain, she is unable to perform physical examinations in her job as a physician's assistant. She has given notice that "September 11 is her last day at work." The pain "becomes worse with certain movements and repetitive use." Senses are decreased for the right lower leg, ankle, and right foot toes. Senses are absent for the corresponding left groups. Right lower extremity radiculopathy is characterized by mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, mild numbness, and an overall severity of mild, incomplete paralysis. Left lower extremity radiculopathy is characterized by moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, and an overall severity of moderate, incomplete paralysis. Her disorder is "medically inconsistent with physical labor employment, or any sedentary job that routinely requires bending, lifting, carrying, standing, distance walking, or sitting without a rest." In the March 2021 hearing transcript, the Veteran describes how since her 1997 surgery she has "continuously suffered from Charley horse-like spasms of both legs, left being so far worse" during which she "would be woken up in the middle of the night once a night for the first few years, sometimes multiple times, having to jump out of bed trying to ease the leg spasms." Easing these spasms "usually took about 20 minutes of walking around to make it stop." In 2007, she started taking Lyrica which improved the pain, and she has noticed an immediate worsening when she runs out of this medication. The June 2021 VA nerves examination indicates that the Veteran has experienced "residual leg pain" since her in-service back surgery. Right lower extremity radiculopathy is characterized by moderate constant pain, no intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, and an overall severity of moderate, incomplete paralysis. Left lower extremity radiculopathy is characterized by moderate constant pain, no intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, and an overall severity of mild, incomplete paralysis. Muscle strength is reduced for bilateral knee extension, right ankle plantar flexion, and bilateral ankle dorsiflexion. Reflexes are absent for the right knee and hypoactive for the right ankle. Senses are decreased for the bilateral thigh/knee, right lower leg/ankle, and bilateral feet/toes. The Veteran constantly uses a cane. Regarding functional impact, the examiner states that the Veteran "is unable to work due to constant pain and weakness." In her June 2021 VA back examination, the Veteran states that she cannot "walk for long period[s] of time." Muscle strength is reduced for left hip flexion, bilateral knee extension, right ankle plantar flexion, bilateral ankle dorsiflexion, and left great toe extension. There is no muscle atrophy. Reflexes are decreased for the bilateral thighs, bilateral knees, right lower leg/ankle, and bilateral feet/toes. Right lower extremity radiculopathy is characterized by moderate constant pain, no intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Left lower extremity radiculopathy is characterized by moderate constant pain, no intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Radiculopathy Analysis 3. From August 21, 2018, entitlement to an initial rating of 40 percent, but no greater, for right lower extremity radiculopathy is granted. 4. From August 21, 2018, entitlement to an initial rating in excess of 40 percent for left lower extremity radiculopathy is denied. The evidence consistently indicates functional loss associated with bilateral lower extremity radiculopathy. In the December 2018 VA back examination, the Veteran describes falls at work due to exacerbations of leg pain. According to her March 2019 statement, she is "[u]nable to walk any extended distances due to increased lower leg pain and weakness." Her April 2019 VA nerves examination states that she cannot perform physical labor. In her August 2019 VA back examination, she states that she will have to quit her job as a physician's assistant due to pain. The June 2021 VA nerves examination states that she "is unable to work due to constant pain and weakness." The Board finds that this evidence of functional loss, manifested by difficulty walking, supports the existence of moderately severe, incomplete paralysis of the bilateral sciatic nerves, consistent with an initial rating of 40 percent from August 21, 2018. From August 21, 2018, there is no argument or evidence regarding the existence of muscle atrophy so as to support a rating of 60 percent. There is also no lay or medical evidence of any of the criteria enumerated in a rating for 80 percent under Diagnostic Code 8520. For these reasons, the preponderance of the evidence is against a rating in excess of 40 percent. TDIU The Veteran is in receipt of TDIU from May 31, 2020, and seeks an earlier effective date. An award of TDIU "does not require proving 100 percent unemployability." Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, an award of TDIU requires that the claimant show an inability "to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). When making this determination, "the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (internal citations and quotations omitted). Additionally, the Board "must take into account the individual veteran's education, training, and work history" but "may not consider [nonservice]-connected disabilities or advancing age." Id. (internal citations omitted). The phrase "substantially gainful employment" has an economic component and a non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). "The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person." Id. The noneconomic component goes to the veteran's individualized ability to secure and follow substantially gainful employment. Ray, 31 Vet. App. at 73. Attention must be given to the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy). Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, and auditory and visual limitations; whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. These factors do not constitute a checklist; rather, "discussion of any factor is only necessary if the evidence raises it." Id. When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 3132 (2007). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a). The same is true for disabilities resulting from common etiology or a single accident. TDIU Evidence The Veteran is in receipt of TDIU from May 31, 2020, and seeks an earlier effective date. TDIU was awarded during the pendency of the Veteran's claim of an increased rating for a back disorder, filed on August 21, 2018. The Board will consider evidence the date of this claim. From August 21, 2018, the Veteran's service-connected disorders are back disorder at 20 percent, right lower extremity radiculopathy at 40 percent, left lower extremity radiculopathy at 40 percent, and three disorders at 0 percent with a combined rating of 80 percent. For this time period, the Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). A March 2019 statement indicates that the Veteran "now works at National Grid." In her August 2019 VA back examination, the Veteran indicates that since service she "has worked as a physician's assistant for 30 years." As a result of radiculopathy pain, she is unable to perform physical examinations and has given notice that "September 11 is her last day at work." Her radiculopathy is "medically inconsistent with physical labor employment, or any sedentary job that routinely requires bending, lifting, carrying, standing, distance walking, or sitting without a rest." A November 2019 VA medical record indicates that the Veteran is "currently working three days a week" as a physician's assistant. In her May 2021 TDIU application, the Veteran indicates that she has worked as a physician's assistant since service. She last worked full time on September 13, 2019, when she was earning up to $10,000.00 per month in the medical field. Between October 2019 and May 2020 she was working part-time and earning up to $500.00 per month. She characterizes herself as physically unable to work, in that she experiences limitations with lifting, leaning forward, standing for extended periods, and walking for extended periods. Her chronic pain makes it hard for her to concentrate, results in depression, and results in chronic fatigue. In her Social Security Disability application, the Veteran states that she has been unable to work since October 5, 2019. TDIU Analysis 5. From September 14, 2019, entitlement to a total disability rating due to individual unemployability (TDIU) Regarding work history, the evidence indicates that the Veteran has worked as a physician's assistant since service. Regarding the economic component of TDIU, the 2019 Poverty Threshold as defined by the U.S. Census Bureau is $13,300.00. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Prior to September 14, 2019, the Veteran's monthly income of up to $10,000 per month gives her an annual income that is well in excess of this amount. From September 14, 2019, the Veteran's maximum income of $500 per month corresponds to a yearly income of $6,000.00, which is well below this amount. For this latter period, the Veteran meets the economic component of TDIU. From September 14, 2019, the Veteran's service-connected disorders alone render her physically unable to engage in substantially gainful employment as a physician's assistant. As described, in her August 2019 VA back examination, she states that she will have to quit her job as a physician's assistant due to pain, and in the June 2021 VA nerves examination she states that she "is unable to work due to constant pain and weakness." The records cited above are consistent with these findings. Even assuming that the Veteran's service-connected disorders do not render her mentally unable to work, the Board finds that from September 14, 2019, her service-connected disorders alone render her physically unable to engage in substantially gainful employment as a physician's assistant. The Veteran is entitled to TDIU from this date. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.