Citation Nr: 21006321 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-24 387 DATE: February 3, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to an initial rating of 40 percent for degenerative arthritis of the lumbar spine from February 10, 2016 to October 10, 2017 is granted. Entitlement to an initial rating in excess of 40 percent for degenerative arthritis of the lumbar spine since February 10, 2016 is denied. Entitlement to an initial rating of 40 percent for right lower extremity radiculopathy from February 10, 2016 is granted. Entitlement to an initial rating in excess of 40 percent for right lower extremity radiculopathy since February 10, 2016 is denied. Entitlement to an initial rating of 40 percent for left lower extremity radiculopathy from February 10, 2016 is granted. Entitlement to an initial rating in excess of 40 percent for left lower extremity radiculopathy since February 10, 2016 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since February 10, 2016 is granted. REMANDED Entitlement to TDIU prior to February 10, 2016 is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran had, at worst, Level II hearing acuity in the right ear and Level II hearing acuity in the left ear; the rating criteria contemplate the Veteran’s hearing symptoms. 2. For the period from February 10, 2016 through October 10, 2017, the Veteran’s degenerative arthritis of the lumbar spine has demonstrated 15 degrees of forward flexion. 3. Throughout the appeal period, the Veteran’s lumbar spine disability has demonstrated at worst 15 degrees of forward flexion and no evidence of thoracolumbar ankylosis. 4. Effective from February 10, 2016, the Veteran’s right lower extremity radiculopathy has been productive of moderately severe incomplete paralysis of the sciatic nerve. 5. Throughout the appeal period, the Veteran’s right lower extremity radiculopathy was not reflective of severe incomplete paralysis of the sciatic nerve; muscular atrophy was not shown. 6. Effective from February 10, 2016, the Veteran’s left lower extremity radiculopathy has been productive of moderately severe incomplete paralysis of the sciatic nerve. 7. Throughout the appeal period, the Veteran’s left lower extremity radiculopathy was not reflective of severe incomplete paralysis of the sciatic nerve; muscular atrophy was not shown. 8. Effective from February 10, 2016, it is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an initial rating of 40 percent for degenerative arthritis of the lumbar spine from February 10, 2016 through October 10, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for an initial rating in excess of 40 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 4. Effective from February 10, 2016, the criteria for an initial rating of 40 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. The criteria for an initial rating in excess of 40 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. Effective from February 10, 2016, the criteria for an initial rating of 40 percent for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 7. The criteria for an initial rating in excess of 40 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 8. The criteria for a grant of TDIU effective from February 10, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1972 to December 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a September 2017 video conference hearing. These matters were previously before the Board in December 2017 when they were remanded for additional development. During the pendency of the appeal, an October 2019 rating decision granted an initial increased rating for degenerative arthritis of the lumbar spine, rated 40 percent disabling, effective from October 10, 2017. The issue has been characterized accordingly. In addition, a July 2020 rating decision granted TDIU, effective from September 21, 2017. The matter of entitlement to TDIU prior to September 21, 2017, remains before the Board. See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). As a result of this decision, the Board is awarding TDIU effective from February 10, 2016. The issue has been characterized accordingly. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Entitlement to an initial compensable rating for bilateral hearing loss. The VA Schedule for Rating Disabilities (Rating Schedule) provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including Puretone thresholds and speech discrimination (Maryland CNC test). See 38 C.F.R. § 4.85. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment in each ear. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). On October 2010 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 20 25 15 20 LEFT 15 10 15 15 The average puretone thresholds were 20 in the right ear and 14 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right and left ear. Applying the results of the October 2010 examination to Table VI produces a finding that the Veteran had Level II hearing acuity in the right and left ear, warranting a noncompensable rating. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86. On March 2018 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 RIGHT 40 40 30 35 LEFT 35 30 30 35 The average puretone thresholds were 36 in the right ear and 33 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. Applying the results of the March 2018 examination to Table VI produces a finding that the Veteran had Level I hearing acuity in the right and left ear, warranting a noncompensable rating. An exceptional pattern of hearing impairment is not demonstrated. 38 C.F.R. § 4.86. The Board acknowledges the Veteran’s reports that his hearing loss results in having to turn the television volume up higher. This functional impairment is contemplated in the Rating Schedule. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Therefore, a compensable rating for the Veteran’s bilateral hearing loss is not warranted at any period during the appeal. 2. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the lumbar spine from February 10, 2016 to October 10, 2017. 3. Entitlement to an initial rating in excess of 40 percent for degenerative arthritis of the lumbar spine since October 10, 2017. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, Plate V. There are several notes following the General Rating Formula criteria, which provide: (1) Associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. (5) Unfavorable ankylosis is a condition in which the entire cervical spine, or the entire spine, is fixed in flexion or extension. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. The Veteran’s lumbar spine disability has been rated under Diagnostic Code 5242 (for degenerative arthritis of the spine). As there is no evidence of incapacitating episodes based on the lumbar spine, such criteria is not applicable to the Veteran’s claim and will not be addressed further. As noted above in the Introduction, this matter was most recently remanded by the Board in December 2017, to include for a new VA examination. The Board finds that the only adequate VA examination during the pendency of this appeal is the March 2018 VA examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158, 166 (2016). Therefore, the Board will solely address the findings of the March 2018 VA examination. After a review of the evidence of record, the Board finds that the Veteran is entitled to an initial rating of 40 percent for his lumbar spine disability for the period from February 10, 2016 through October 10, 2017. On March 2018 VA examination, range of motion studies revealed forward flexion to 15 degrees. Under the General Rating Formula, forward flexion of the thoracolumbar spine 30 degrees or less warrants a 40 percent rating. Resolving reasonable doubt in the Veteran’s favor, the Board finds that such findings are consistent with an initial 40 percent rating for the period from February 10, 2016 through October 10, 2017. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding the Veteran’s lumbar spine disability warrants an initial rating in excess of 40 percent. On February 2016 and October 2017 VA examinations, the examiners specifically found there was no ankylosis of the spine. While the Board has found the February 2016 and October 2017 examinations were not adequate, the finding is pertinent to the matter at hand (i.e., whether there is evidence to support a rating in excess of 40 percent, requiring ankylosis of the spine). On March 2018 VA back conditions examination, the Veteran demonstrated forward flexion to 15 degrees. Notably, the Veteran denied flare-ups on examination. The examiner also specifically stated that there was no evidence of ankylosis of the spine. As 40 percent is the highest schedular rating for limitation of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, the clinical data of record fails to reflect findings commensurate with the rating criteria for the next higher rating of 50 percent. The Board has also considered Correia v. McDonald, 28 Vet. App. 158 (2016), which holds that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, given the Veteran is receiving the maximum rating based on limitation of motion of the lumbar spine, and a higher rating requires unfavorable ankylosis of the entire thoracolumbar spine, there is no prejudice in the March 2018 VA examination failing to comply with § 4.59 as interpreted in Correia. With regard to whether a separate rating is warranted for any neurological manifestations of the Veteran’s lumbar spine disability, the Veteran has separate ratings for his right and left lower extremity sciatic nerve radiculopathy, addressed below. Aside from findings related to his right and left lower extremity sciatic nerve radiculopathy, there is no evidence of bowel or urinary incontinence, or any other spinal-related neurological impairments. Accordingly, a separate evaluation for any such lumbar spine-related neurological impairment is not warranted. In sum, the evidence of record fails to reflect a basis for awarding an increased rating greater than 40 percent for the orthopedic manifestations of the Veteran’s lumbar spine disability, or for awarding a separate rating for any related neurological manifestations (other than the currently compensated right and left lower extremity sciatic and femoral nerve radiculopathy). Accordingly, the preponderance of the evidence is against the Veteran’s claim for an increased rating in excess of 40 percent for his lumbar spine disability. Thus, there is no reasonable doubt to resolve on the Veteran’s behalf, and an initial rating greater than 40 percent for the Veteran’s lumbar spine disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 4. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy from February 10, 2016 to September 21, 2017. 5. Entitlement to an initial rating in excess of 20 percent since September 21, 2017 for right lower extremity radiculopathy. 6. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy from February 10, 2016 to September 21, 2017. 7. Entitlement to an initial rating in excess of 20 percent since September 21, 2017 for left lower extremity radiculopathy. The Veteran’s radiculopathy of the right and lower extremity is rated under Diagnostic Code 8520, which provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve, 20 percent for moderate incomplete paralysis of the sciatic nerve, 40 percent for moderately severe incomplete paralysis of the sciatic nerve, and 60 percent for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A rating of 80 percent is warranted for complete paralysis of the sciatic nerve, characterized by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. At the outset, the Board notes that the Veteran’s right and lower extremity has not been manifested by muscle atrophy or complete paralysis at any point during the appeal period. Therefore, entitlement to ratings of 60 and 80 percent for incomplete and complete paralysis, respectively, under Diagnostic Code 8520, are not warranted. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states 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. The Board acknowledges that the terms “mild,” “moderate,” and “severe” are not defined in the rating schedule. 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. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As noted above in the Introduction, these matters were most recently remanded by the Board in December 2017, to include for a new VA examination. As indicated above, the Board finds that the only adequate VA examination during the pendency of this appeal is the March 2018 VA examination. Therefore, the Board will solely address the findings of the March 2018 VA examination. After a review of the evidence of record, the Board finds that the Veteran is entitled to an initial rating of 40 percent for his right and left lower extremity radiculopathy, effective from February 10, 2016. As noted above, under Diagnostic Code 8520, a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. On March 2018 VA examination, reflex examination was normal (2+) at the knee and ankle, bilaterally. Sensory examination was decreased at the lower leg/ankle (L4/L5/S1) and the foot/toes (L5), bilaterally. Muscle strength testing was 4/5 on knee extension and ankle plantar flexion/dorsiflexion, bilaterally. The examiner also noted the Veteran’s right and left lower extremity radiculopathy were manifested by severe constant pain, severe paresthesias and/or dysesthesias and severe numbness. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran is entitled to an initial rating of 40 percent for his right and left lower extremity radiculopathy, effective from February 10, 2016. The next critical question is whether the Veteran’s right or left lower extremity radiculopathy warrants an initial rating in excess of 40 percent at any period during the appeal. As noted above, a 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Inasmuch as there is no evidence of muscular atrophy, and there is otherwise no evidence supporting a finding of severe incomplete paralysis of the right and left lower extremity radiculopathy, the Board finds entitlement to a rating in excess of 40 percent for the Veteran’s right and left lower extremity radiculopathy is not warranted. Accordingly, the preponderance of the evidence is against a finding the Veteran warrants an initial rating of 60 percent for his right and left lower extremity radiculopathy. 8. Entitlement to TDIU prior to September 21, 2017. 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 as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s masters degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: 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) required by the occupation at issue. 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, and reaching, as well as auditory and visual limitations; and 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. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As noted above, a July 2020 rating decision awarded TDIU, effective from September 21, 2017. A request for 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 TDIU is raised, it is “part of the claim for benefits for the underlying disability.” Id. Once entitlement to TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the Agency of Original Jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. Inasmuch as the matter of entitlement to TDIU was part and parcel of the underlying claim for an initial increased rating for degenerative arthritis of the lumbar spine (effective from May 18, 2010), and TDIU was not granted for the entire appeal period, the claim of entitlement to TDIU remains on appeal, and has been characterized accordingly. Based on the decision above regarding entitlement to an initial increased rating for degenerative arthritis of the lumbar spine and secondary right and left lower extremity radiculopathy, the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) effective from February 10, 2016. See 38 C.F.R. §§ 4.25, 4.26. What remains to be determined is whether the functional impairment associated with his service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. The evidence shows that the Veteran’s educational background includes two years of college education. See, e.g., September 2017 VA Form 21-8940. The evidence shows he has not been substantially gainfully employed since 2010. See 2010 to 2018 U.S. Individual Income Tax Returns (showing marginal income). The Veteran’s work experience includes over 10 years working on an assembly line for automobile companies, and more recently working part-time as a self-employed courier. See, e.g., October 2010 VA audiological examination; see also February 2018 VA Form 21-4192. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran’s service-connected disabilities, and specifically his service-connected lumbar spine and bilateral lower extremity radiculopathy, in combination with his service-connected tinnitus and bilateral hearing loss, prevent him from securing and following substantially gainful employment effective from February 10, 2016. In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran’s service-connected disabilities is of such nature and severity as to preclude substantially gainful employment effective from February 10, 2016. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). The Board finds significant that the Veteran’s employment history includes significant physical labor. March 2018 VA back conditions and peripheral nerves conditions examinations found the functional impact of his service-connected lumbar spine disability and bilateral lower extremity radiculopathy include difficulty bending, lifting, carrying, sitting or standing too long, and walking too far. In addition, March 2018 VA audiological examination note the functional impact of his tinnitus includes causing a loss of concentration. Thus, given the evidence regarding the severity of the Veteran’s service-connected disabilities, and evidence indicating the Veteran’s functional limitations due to his disabilities, and in light of his individual work experience, training and education, the Board finds that the evidence shows he is entitled to an award of TDIU effective from February 10, 2016. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Even conceding that the Veteran appears to currently work part-time as a courier, there is no indication that such employment rises to the level beyond that of marginal employment. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342 (2000). Thus, entitlement to TDIU effective from February 10, 2016 is granted.   REASONS FOR REMAND 9. Entitlement to TDIU prior to February 10, 2016 is remanded. In light of the Court’s recent decisions in Harper and Payne, the grant of TDIU effective from February 10, 2016, does not resolve the appeal of this issue. Under 38 C.F.R. § 4.16(b), where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims held that the Board cannot award TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. In this case, prior to February 10, 2016, the Veteran’s service-connected disabilities do not meet the schedular criteria for consideration of TDIU. The record reflects that the Veteran has had at best marginal employment since 2010. See 2010 through 2018 U.S. Individual Income Tax Returns. The evidence suggests that the Veteran’s service-connected disabilities, and particularly his lumbar spine and associated bilateral lower extremity radiculopathy, have caused substantial impairment that affect his ability to obtain and maintain employment consistent with his employment history and ability. The Board is precluded from considering in the first instance whether TDIU should be assigned on an extraschedular basis for the period prior to February 10, 2016, and therefore the case must be referred to the Director, Compensation Service.   The matters are REMANDED for the following action: Refer the matter of entitlement to TDIU prior to February 10, 2016, to the Director, Compensation Service, for a determination in the first instance as to whether the assignment of a TDIU rating is warranted on an extraschedular basis prior to February 10, 2016. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, 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.