Citation Nr: 21005743 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 11-22 351 DATE: February 2, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for L5-S1 spondylosis and grade 1 listhesis of L4 and L5 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s spine disability is manifest by forward flexion of the thoracolumbar spine greater than 30 degrees with no intervertebral disc syndrome (IVDS) symptoms that cause incapacitating episodes or ankylosis. 2. The evidence of record does not indicate that the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5237 (2019). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.341, 3.401, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to August 1969 This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2009, May 2009, August 2009, and February 2020 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This matter was previously before the Board in October 2017, when it was remanded for additional evidentiary development. In compliance with the remand directives, a VA medical examination was conducted. The directives have been substantially complied with, and the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that, in February 2020, the Veteran’s representative submitted a statement requesting withdrawal of the appeal. The representative stated that the Veteran had made the decision not to continue to pursue his claim with the VA. The representative concluded by asking VA to accept the letter as the Veteran’s request to withdraw any pending claim in its entirety and close his file. However, the Board notes that the listed Veteran’s name and file number are not the name and file number of the Veteran in this case. As such, the claims are still on appeal. 38 C.F.R. § 20.204. 1. Entitlement to a disability rating in excess of 20 percent for L5-S1 spondylosis and grade 1 listhesis of L4 and L5 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). 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 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. By way of history, the Veteran was granted service connection for L5-S1 spondylosis and grade 1 listhesis of L4 and L5 in an August 2009 rating decision, evaluated as 10 percent disabling effective December 2008. An October 2017 Board decision remanded the Veteran’s claim in order to obtain a VA examination to assess the current manifestations of the Veteran’s spine disability. The Veteran was afforded a VA examination in May 2018. A February 2020 rating decision increased the Veteran’s disability rating to 20 percent effective May 2018. The Veteran asserts entitlement to a disability rating in excess of 20 percent. The Veteran’s spine disability is rated under Diagnostic Code (DC) 5010-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. Regulations provide that, when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected and the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has been prescribed bed rest to treat incapacitating episodes of IVDS and IVDS was only noted during the Veteran’s September 2020 VA examination. See December 2012, May 2018, September 2020 VA Examination Reports. The Veteran has not argued to the contrary. Because the prescription of bed rest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. Thus, a rating based on IVDS is not appropriate and the Veteran’s spine disability will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height under the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Prior to May 2018 Prior to May 2018, the Veteran’s spine disability was rated as 10 percent disabling, effective December 2008. The Veteran was afforded a VA examination in July 2009. The Veteran reported daily pain, with flare ups at least once a month and sometimes lasting several days, that effects his ability to do household chores requiring him to pick things up. He further reported that he can walk about 15 minutes or two blocks before he has to rest because of back and leg pain. The Veteran stated that he had not been ordered bed rest in the last 12 months. Upon examination, the Veteran’s spine was nontender to palpation. Range of motion testing revealed flexion from 0 to 90 degrees, extension from 0 to 30 degrees, and left and right lateral flexion from 0 to 30 degrees, without pain. On repetition, the Veteran had the same range of motion without pain. Light touch sensation was decreased. The VA examiner noted no clonus or spasticity. Addressing DeLuca provisions, the VA examiner noted no pain on range of motion at the time but reported that it is possible pain could further limit functional ability as described by the Veteran. The Veteran was afforded a VA examination in December 2012. The Veteran reported sustaining a same level fall during service and that he currently experiences low back pain. The Veteran endorsed flare-ups, limiting his ability to bend. Range of motion testing revealed flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right lateral flexion from 0 to 30 degrees, left lateral flexion from 0 to 25 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 30 degrees, with no objective evidence of pain noted on examination. The Veteran was able to perform repetitive-use testing with no additional limitation in range of motion. The VA examiner noted no functional loss and/or impairment. There was localized tenderness or pain to palpation present but no guarding or muscle spasm. Muscle strength was 5/5 with no atrophy. The VA examiner noted decreased sensation to light touch on the Veteran’s lower leg/ankle, bilaterally. Straight leg test was negative. The VA examiner reported radiculopathy symptoms, noting mild bilateral intermittent pain of the sciatic nerve. The VA examiner reported that the Veteran’s bilateral radiculopathy was mild in severity. There was no evidence of IVDS. The Veteran denied use of any assistive device. The VA examiner reported that the Veteran’s spine disability impacts his ability to work, precluding heavy lifting. A November 2015 private treatment record notes the Veteran’s complaints of low back pain, beginning several years ago. The Veteran ambulated without difficulty. The private physician noted a negative straight leg test bilaterally, 5/5 strength testing, and some tenderness to palpation at the L1 level. Three view x-ray showed multilevel spondylosis with significant degeneration of the disc at L5-S1. After a review of the evidence of record, the Board finds that the medical evidence of record does not demonstrate findings to warrant a rating in excess of 10 percent prior to May 2018. In evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. The Veteran’s forward flexion was noted to be limited consistently greater than 60 degrees, as shown in the July 2009 and December 2012 VA examinations, even when taking functional loss due to pain into consideration. Furthermore, guarding or muscle spasms have not been shown. The Veteran did not demonstrate findings consistent with a 20 percent rating at any time prior to May 2018. Therefore, a disability rating in excess of 10 percent for the Veteran’s spine disability prior to May 2018 is not warranted and the claim must be denied. As of May 2018 As of May 2018, the Veteran’s spine disability is rated as 20 percent disabling. The Veteran was afforded a VA examination in May 2018. The VA examiner noted a diagnosis of severe spondylosis and grade 4 listhesis of L4 and L5. The Veteran reported constant pain in his back with prolonged standing or walking, an inability to bend or squat without severe pain, loss of movement with certain twisting movement, and frequent muscle spasms. The Veteran endorsed flare-ups, described as increased pain and fatigue with bending and twisting, occurring daily and moderate in severity. The Veteran further reported functional impairment, described as weakness, lack of endurance, and fatigue. Range of motion testing revealed flexion from 0 to 40 degrees, extension from 0 to 15 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 15 degrees, right lateral rotation from 0 to 20 degrees, and left lateral rotation from 0 to 15 degrees, with pain, lack of endurance, and fatigue noted on examination and causing functional loss. The VA examiner noted that the Veteran’s pain begins at all endpoints listed for each range of motion plane. There was objective evidence of localized tenderness or pain on palpation, described moderate mid to lower back pain. The VA examiner noted pain on examination at rest/non-movement as well as pain with weight-bearing. The VA examiner reported that the Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion after three repetitions. The VA examiner could not say without mere speculation if pain, weakness, fatiguability, or incoordination significantly limit functional ability with repeated use over time or during a flare-up. The VA examiner reported was no guarding or muscle spasms present but also noted that muscle spasms result in an abnormal gait or spinal contour. There were no more additional factors noted that contribute to the Veteran’s spine disability. Muscle strength was, at worse, 4/5 with no muscle atrophy. The VA examiner noted decreased sensation to light touch bilaterally and straight leg test was positive for the Veteran’s left side. The VA examiner noted mild left lower extremity intermittent pain, mild paresthesias bilaterally, and mild numbness bilaterally, all attributed to the Veteran’s sciatic nerves. The VA examiner reported that the Veteran’s bilateral radiculopathy was mild in severity. There was no ankylosis present. There was no evidence of IVDS. The Veteran endorsed regular use of a cane. The VA examiner reported that the Veteran’s spine disability impacts his ability to work, making him unable to do household chores or occupational task due to an inability to squat and increased pain with bending. As to Correia factors, the VA examiner reported that passive range of motion was not performed as it was not feasible to do in a safe and reasonable manner and that there was no objective evidence of pain when the spine is in a non-weight bearing position. A July 2019 private treatment record notes the Veteran’s complaints of low back pain, described as aching and radiating. The Veteran reported that his back pain is aggravated by sitting, walking, lying down, standing up, and physical activity. The Veteran reported his pain is alleviated by standing. The private physician reported tenderness to palpation and decreased range of motion secondary to moderate pain. No objective range of motion testing results were provided. Muscle strength was within normal limits. Straight leg test was positive, bilaterally. A September 2019 private treatment record notes the Veteran’s complaints of low back pain that has gradually worsened over time. The Veteran stated that he broke his lower thoracic spine processes after using an inversion table in December 2017. The private physician reported that the Veteran completed strengthening exercises with fatigue and slight soreness present as well as increased repetitions of strengthening exercises with difficulty completing toe raises. A VA addendum medical opinion was provided in January 2020, assessing any effects of the Veteran’s spine disability on his ability to function in an occupational environment. The VA examiner reported that the Veteran’s spine disability limits physically demanding work due to pain and limits sedentary work, necessitating frequent breaks. The Veteran was afforded a VA examination in September 2020. The VA examiner noted a diagnosis of IVDS, severe spondylosis and grade 4 listhesis of L4 and L5, with degenerative changes with nerve root abutment of L5 on left, degenerative disc disease of lumbar spine, and bilateral lower extremities lumbar radiculopathy. The Veteran reported that his condition had worsened, experiencing constant throbbing pain and stiffness in the lower back. The Veteran endorsed flare-ups, described as sharp stabbing pain and low back spasms with sharp pain shooting down both legs. The Veteran further endorsed functional loss, described as difficulty with any bending or twisting and prolonged sitting or standing, with poor balance and unsteady gait requiring a cane. Range of motion testing revealed flexion from 0 to 50 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 25 degrees, and left lateral rotation from 0 to 25 degrees, with pain noted on examination and causing functional loss. There was objective evidence of localized tenderness or pain on palpation, described as moderate to severe guarding L4-L4 and L5-S1. There was evidence of pain with weight-bearing. The VA examiner reported that the Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion after three repetitions. The VA examiner noted pain and fatigue significantly limit functional ability with repeated use over a period of time as well as during flare-ups, resulting in flexion from 0 to 40 degrees, extension from 0 to 15 degrees, right lateral flexion from 0 to 15 degrees, left lateral flexion from 0 to 15 degrees, right lateral rotation from 0 to 20 degrees, and left lateral rotation from 0 to 20 degrees. The VA examiner noted guarding, resulting in abnormal antalgic unsteady gait. Additional factors contributing to the Veteran’s disability include disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength was 5/5 on the right side and 4/5 on the left side, with no muscle atrophy. Sensory examination revealed decreased sensation to light touch bilaterally and straight leg raising test was positive. The VA examiner noted moderate right lower extremity intermittent pain, severe left lower extremity intermittent pain, moderate paresthesia bilaterally, moderate right lower extremity numbness, and severe left lower extremity numbness. The impacted nerves include bilateral femoral and bilateral sciatic nerves. The VA examiner reported that the severity of the Veteran’s radiculopathy was moderate, bilaterally. There was no ankylosis present. The Veteran’s IVDS has not required bed rest prescribed by a physician in the last 12 months. The Veteran endorsed constant use of a cane. The VA examiner reported that the Veteran’s spine condition impacts his ability to work, resulting in difficulty with any bending or twisting and prolonged standing or sitting, as well as poor balance and unsteady gait. As to Correia criteria, there was objective evidence of pain with non-weight bearing. After a review of the evidence of record, the Board finds that the medical evidence of record does not demonstrate findings to warrant a rating in excess of 20 percent. In evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. The Veteran’s forward flexion was noted to be limited consistently greater than 30 degrees, as shown in the December 2012, May 2018, and September 2020 VA examinations, even when taking functional loss due to pain into consideration. Furthermore, ankylosis has not been shown. The Veteran did not demonstrate findings consistent with a 40 percent rating at any time during the course of the appeal. Therefore, a rating in excess of 20 percent for the Veteran’s spine disability is not warranted and the claim must be denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 2020 The Veteran contends his service-connected disabilities prevent him from securing and following a substantially gainful occupation. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service-connected for unspecified trauma and stressor related disorder, rated as 50 percent disabling effective January 2017; left lower extremity peripheral neuropathy, sciatic nerve, rated as 40 percent disabling effective January 2020; right lower extremity neuropathy, sciatic nerve, rated as 40 percent disabling effective January 2020; diabetes mellitus, rated as 20 percent disabling effective December 2018; right lower extremity neuropathy, femoral nerve, rated as 20 percent disabling effective January 2020; left lower extremity neuropathy, femoral nerve, rated as 20 percent disabling effective January 2020; L5-S1 spondylosis and grade 1 listesis of L4 and L5, rated as 20 percent disabling effective May 2018; pseudophakic, rated as noncompensable; erectile dysfunction, rated as noncompensable; and, surgical scar, rated as noncompensable. Based on these numbers and the dates assigned, the Veteran’s overall combined evaluation for his disabilities are 100 percent disabling as of January 2020. A TDIU rating is contingent on the schedular rating being less than total. As such, a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. 38 C.F.R. § 4.16 (a). However, the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not always moot the issue of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that a TDIU rating may still form the basis for assignment of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s)). The facts in this case are distinguishable from Bradley, in that the Veteran has a 100 percent combined schedular rating for multiple disabilities, effective from January 2020. As such, if granted, TDIU would be based on all of the Veteran’s service-connected disabilities. See 38 C.F.R. § 4.16. A TDIU rating based upon multiple disabilities does not meet the requirement of a single disability requirement of 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242 (2010). Therefore, the Board finds the issue of entitlement to TDIU from January 2020 is moot. However, the Veteran may still be entitled to a TDIU prior to January 2020. The Veteran was afforded a VA psychiatric examination in January 2017. The VA examiner noted a diagnosis of unspecified trauma and stressor related disorder. The Veteran reported fair to good psychosocial functioning with limitations due to pain and health problems. He reported enjoying fishing, taking his grandsons hunting, and going walking with his wife and that he avoids conflict, people arguing, and stressful interactions. The Veteran stated that he works part-time for his son’s tire company, working in the office. He denied being fired, reprimanded, written up, or suspended. The Veteran endorsed symptoms of anxiety and chronic sleep impairment. The VA examiner reported that the Veteran’s psychiatric disability results in occupational and social impairment with reduced reliability and productivity. The Veteran was afforded a VA spine examination in May 2018. The VA examiner noted a diagnosis of severe spondylosis and grade 4 listhesis of L4 and L5. The Veteran reported constant pain in his back with prolonged standing or walking, an inability to bend or squat without severe pain, loss of movement with certain twisting movement, and frequent muscle spasms. The Veteran endorsed flare-ups, described as increased pain and fatigue with bending and twisting, occurring daily and moderate in severity. The Veteran further reported functional impairment, described as weakness, lack of endurance, and fatigue. The VA examiner reported that the Veteran’s spine disability impacts his ability to work, making him unable to do household chores or occupational task due to an inability to squat and increased pain with bending. The Veteran was afforded a VA peripheral nerves examination in May 2018. The VA examiner noted bilateral lower extremity peripheral neuropathy. The Veteran reported swelling and burning in his feet as well as leg weakness after prolonged sitting. The Veteran endorsed several falls. The VA examiner noted mild constant pain in the left lower extremity, mild intermittent pain in the right lower extremity, mild paresthesias and/or dysesthesias bilaterally, and mild numbness bilaterally. The VA examiner reported an antalgic gait favoring the Veteran’s right side due to peripheral neuropathy and back pain. The VA examiner reported mild incomplete paralysis of the bilateral sciatic nerves. The Veteran endorsed regular use of a cane. The VA examiner reported that the Veteran’s bilateral lower extremity neuropathy impacts his ability to work, noting that the Veteran was retired but that the Veteran would be unable to stand or sit for prolonged periods of time and decreased sensation increases his fall risk. The Veteran was afforded a VA psychiatric examination in May 2018. The VA examiner noted a diagnosis of unspecified trauma and stressor related disorder. The Veteran endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss. The Veteran was appropriately dressed and groomed. Speech was logical and coherent. Judgment and insight were good. The VA examiner reported that the Veteran’s psychiatric disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. A VA medical opinion was provided in December 2019, assessing any effects of the Veteran’s unspecified trauma and stressor related disorder on his ability to function in an occupational environment. The VA examiner reported that the Veteran would have no job-related difficulties secondary to his service-connected metal health issues. The VA examiner noted the Veteran’s reports of chronic sleep impairment, resulting in occasional decreases in work efficiency, and subjective reports of mild memory loss. However, the VA examiner further noted that the Veteran had adequate spelling abilities and memory recollection. The most recent information available suggests that the Veteran is retired. The AOJ sent VA Form 21-8940 to the Veteran in March 2020 to obtain his employment and education history. To date, VA has not received a completed VA Form 21-8940 or other employment history verifying the cause of his retirement. The Board notes that the Veteran has reported on multiple occasions retiring due to eligibility by age or duration of work and, on one occasion, due to a back injury. See April 2009, June 2009, September 2011 VA Treatment Records. In a November 2015 private treatment record, the Veteran reported not working by choice (retired). Therefore, in light of the above evidence of record, and given that the Veteran has not identified any specific outstanding records that indicate he is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, the Board concludes that the criteria for entitlement to a TDIU, including whether extra-schedular referral is warranted, prior to January 2020 are not met. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is a “two-way street”). There exists no evidence, other than the Veteran’s statements, to support a finding that his service-connected disabilities are of sufficient severity to produce unemployability. Thus, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.