Citation Nr: 21006891 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-37 877 DATE: February 5, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for right lower extremity radiculopathy, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a 40 percent rating, prior to June 11, 2019, for lumbar strain, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 40 percent for lumbar strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran has experienced right lower extremity radiculopathy which has been manifested by no more than mild incomplete paralysis of the sciatic nerve during the entire claim period. 2. The Veteran’s lumbar strain is manifested by limitation of forward flexion of the thoracolumbar spine to between 35 degrees and 65 degrees, with additional limitation of motion during flare ups, and to the extent that medication has ameliorated these symptoms, such amelioration cannot be considered; there is no spinal ankylosis or incapacitating episodes due to intervertebral disc syndrome (IVDS) having a total duration of at least 6 weeks during a 12-month period. 3. The Veteran is now service-connected for the following disabilities: residuals fracture, right femoral neck, rated 40 percent disabling; lumbar strain, rated 40 percent disabling; right lower extremity radiculopathy, now rated 10 percent disabling; limitation of flexion for residuals fracture, right femoral neck, rated noncompensable; and impairment of the hip due to residuals fracture, right femoral neck, rated noncompensable; his combined disability rating is now 70 percent. 4. The Veteran’s service-connected disabilities do not preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, Diagnostic Code (DC) 8520. 2. The criteria for a 40 percent rating, prior to June 11, 2019, for lumbar strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code (DC) 5237. 3. The criteria for a rating in excess of 40 percent for lumbar strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.71A, Diagnostic Codes (DC) 5237, 5243. 4. The criteria for a TDIU due to service-connected disabilities are not met. 38 U.S.C. §§ 1155, 5107(b); 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 from June 2007 to May 2008. These matters initially came before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision. In August 2018, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue, as well as the issue of entitlement to an increased rating for lumbar strain, for further development. In June 2020, the agency of original jurisdiction (AOJ) awarded an increased (40 percent) rating for lumbar strain, from June 11, 2019. In the August 2018 remand, the Board directed the AOJ to obtain all outstanding VA treatment records, afford the Veteran appropriate VA examinations to assess the severity of his service-connected back disability and to assess any other appropriate disability relevant to his claim for a TDIU, and adjudicate the claim for a TDIU. Pursuant to the Board’s remand, all outstanding VA treatment records were obtained and associated with the claims file, the Veteran was afforded VA back and hip examinations in June and October 2019, and the AOJ adjudicated his claim for a TDIU by way of an August 2020 supplemental statement of the case (SSOC). Therefore, the AOJ substantially complied with the Board’s remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, in October 2020, the Board remanded the issue of entitlement to a rating in excess of 40 percent for residuals fracture, right femoral neck, to the AOJ for further development. This matter has not yet been returned to the Board for further adjudication and will not be addressed at this time. I. Higher Initial Rating/Increased Rating Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Background The Veteran reported during a September 2014 VA back examination that he experienced constant localized aching and pressure-like back pain, back stiffness, and decreased ranges of spinal motion. He did not experience any burning, “electric,” or numbness in his back or towards his extremities. He experienced flare ups of increased back pain with prolonged sitting, walking, and standing. Examination revealed that the ranges of motion of the thoracolumbar spine were flexion to 45 degrees with pain at 30 degrees, extension to 20 degrees with pain at 15 degrees, and right and left lateral flexion and rotation all to 20 degrees with pain at 20 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions, the ranges of motion of the thoracolumbar spine remained the same following repetitive-use testing, and there was no additional limitation in the ranges of motion following repetitive-use testing. There was functional loss/impairment of the thoracolumbar spine in terms of less movement than normal and pain on movement and there was lumbar paravertebral muscle tenderness. There were no muscle spasms or guarding of the thoracolumbar spine. Lower extremity muscle strength was normal (5/5) bilaterally, there was no muscle atrophy, knee and ankle reflexes were normal (2+) bilaterally, lower extremity sensation was normal bilaterally, and straight leg raise testing was negative bilaterally. Overall, the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine, the Veteran did not have any neurologic abnormalities or findings related to the thoracolumbar spine, and he did not have IVDS of the thoracolumbar spine. Also, he did not use any assistive devices due to his back disability, there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis, and there were no scars related to the Veteran’s back disability. The Veteran was diagnosed as having lumbar strain. This disability did not impact his ability to work. The examiner who conducted the September 2014 examination explained that the Veteran was not experiencing a flare up of back pain at the time of the examination, but that pain could significantly limit functional ability during flare ups or when the back was used repetitively over a period of time. There was evidence of back pain during the examination, but there was no weakness, fatigability, or incoordination. Since the Veteran was not experiencing a flare up of pain during the September 2014 examination, the examiner was unable to measure any change in a previously recorded baseline range of motion, strength, fatigability, or incoordination. It was not possible to express additional limitation due to pain in terms of degrees of additional range of motion loss without resorting to mere speculation because such limitation should be documented during a flare up and the Veteran was not experiencing a flare up during the examination. The Veteran reported on a March 2016 “Notice of Disagreement” form (VA Form 21-0958) and during a May 2016 VA back examination that he experienced “severe and aggressive pain” due to his back disability. The pain was persistent and localized and he took medication (Tramadol) to alleviate his symptoms. He did not undergo any physical therapy, he did not report any flare ups of symptoms during the May 2016 examination, and he did not report any functional loss/impairment of the thoracolumbar spine. Examination revealed that the ranges of motion of the thoracolumbar spine were flexion to 65 degrees, extension, right lateral flexion, and right lateral rotation all to 25 degrees, left lateral flexion to 20 degrees, and left lateral rotation to 10 degrees. The ranges of motion themselves did not contribute to functional loss. There was pain associated with all ranges of motion of the thoracolumbar spine, but the pain did not result in/cause functional loss. There was no evidence of pain with weight-bearing. There was tenderness of the lumbar paravertebral muscles. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was not being examined immediately after repetitive-use over time and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time. The examiner explained that pain, weakness, fatigability, or incoordination could limit functional ability of an individual during a flare up, but that the extent of any such functional limitation could not be determined without resorting to mere speculation because the Veteran was not experiencing a flare up at the time of the May 2016 examination. Moreover, there was localized tenderness which did not result in an abnormal gait or abnormal spinal contour, but there were no muscle spasms or guarding. There were no additional factors contributing to disability. Lower extremity muscle strength was normal (5/5) bilaterally, there was no muscle atrophy, lower extremity deep tendon reflexes were normal (2+) bilaterally, lower extremity sensation was normal bilaterally, and straight leg raise testing was negative bilaterally. The Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy, there was no ankylosis of the spine, there were no neurologic abnormalities or findings related to the thoracolumbar spine, and the Veteran did not have IVDS of the thoracolumbar spine. He did not use any assistive devices due to his back disability, there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis, there were no scars related to the Veteran’s back disability, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. A diagnosis of lumbar strain was provided. The Veteran was studying and working as a police officer and his back disability impacted his ability to work in that prolonged standing, sitting, and walking exacerbated his disability. The physician who conducted the May 2016 examination explained that pain could significantly limit functional ability during flare ups or when the Veteran’s back was used repeatedly over a period of time, but that there was no evidence of fatigability, incoordination, muscle weakness, or pain during the May 2016 examination. A determination as to additional limitation due to pain in terms of degrees of additional range of motion loss was not possible because such a determination should be made during a flare up and the Veteran was not experiencing a flare up during the examination. A June 2017 VA podiatry consultation note, an October 2017 VA rheumatology consultation note, a February 2018 VA primary care podiatry follow up note, and the report of a June 2019 VA back examination reflect that the Veteran experienced constant back pain and stiffness which caused difficulty with standing from a sitting position and bending forward. The pain was aching and pressure-like, increased in intensity with prolonged sitting, standing, and walking and activities that involved bending at the trunk, and occasionally radiated to the right lower extremity with associated leg cramping and foot burning. Flare ups of severe back pain occurred approximately twice per week and lasted for approximately 6 to 8 hours at a time, during which the Veteran had to use more pain medication than usual and did not get as effective pain relief as during other days. He sometimes needed two consecutive doses of medication before getting some pain relief and he experienced increased stiffness on such occasions. There was functional loss/impairment of the thoracolumbar spine in terms of decreased endurance to standing, walking, and sitting in the same position. Examinations revealed that the ranges of motion of the thoracolumbar spine were flexion to 35 degrees, extension to 10 degrees, and right and left lateral flexion and rotation all to 20 degrees. The ranges of motion themselves did not contribute to functional loss. There was pain associated with all ranges of motion, but the pain did not result in/cause functional loss. There was no evidence of pain with weight-bearing, but there was tenderness to palpation at the lumbar paravertebral muscles. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. He was not being examined immediately after repetitive use over time or during a flare up, the examination was medically consistent with his statements describing functional loss with repetitive use over time and during flare ups, and pain significantly limited functional ability with repeated use over a period of time and during flare ups. The examiner specified that the ranges of motion of the thoracolumbar spine with repeated use over a period time would be flexion to 20 degrees, extension to 5 degrees, and right and left lateral flexion and rotation all to 20 degrees. The ranges of motion of the thoracolumbar spine during flare ups would be flexion to 20 degrees, extension to 5 degrees, and right and left lateral flexion and rotation all to 10 degrees. Moreover, there was no guarding or muscle spasm of the thoracolumbar spine, there were no additional contributing factors of disability, lower extremity muscle strength was normal (5/5) bilaterally, there was no muscle atrophy, lower extremity deep tendon reflexes were normal (2+) bilaterally, and lower extremity sensation was normal bilaterally. Straight leg raise testing conducted during the June 2017 evaluation elicited severe lumbar tenderness with paresthesia at the plantar medial arch (more prominent in the right foot), but straight leg raise testing was negative bilaterally during the June 2019 VA back examination. There was no radicular pain or any other signs or symptoms due to radiculopathy, there was no ankylosis of the spine, there were no neurological abnormalities or findings related to the thoracolumbar spine, and the Veteran did not have IVDS of the thoracolumbar spine. He did not use any assistive devices due to his back disability, there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis, there were no scars related to the Veteran’s back disability, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having lumbar strain, lumbago with sciatica, and pyriformis syndrome on the right. The examiner who conducted the June 2019 examination noted that there was evidence of pain on passive range of motion testing and when the Veteran’s spine was used in non weight-bearing. He experienced limitation of spinal motion and pain accompanied his efforts to bend or twist his trunk and lift and carry objects. He was limited in his ability to lift, push, pull, carry objects weighing 10 pounds or more, and he was unable to perform activities that required rapid trunk movement and repetitively going from sitting to standing and vice versa. He was limited to non-physical activities and should not participate in high impact activities. In a November 2020 statement, the Veteran’s representative reported that she had spoken with the Veteran, and that the Veteran reported that approximately 6 months prior to filing his April 2014 increased rating claim, he experienced increased lumbar pain flare ups that resulted in additional reduced spinal motion and were occasionally associated with pain that radiated to the right lower extremity. These flare ups were precipitated by prolonged sitting for classes. 2. Entitlement to an increased rating for lumbar strain, rated 20 percent disabling prior to June 11, 2019 and 40 percent disabling since that date The Veteran’s lumbar strain is rated under 38 C.F.R. § 4.71A, DC 5237 as lumbosacral strain. A lumbosacral strain is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). Under the 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 apply: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. § 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran has manifested thoracolumbar spine symptoms of the type and extent, frequency, and/or severity, as appropriate, to warrant a 40 percent rating, but no higher, during the entire claim period. The above evidence reflects that forward flexion of the thoracolumbar spine was to 45 degrees during the September 2014 VA back examination, to 65 degrees during the May 2016 examination, and to 35 degrees during the June 2019 examination. There was pain associated with forward flexion of the spine during the September 2014 examination and the pain began at 30 degrees of flexion. During the September 2014 examination, the Veteran reported that he experienced flare ups of increased back pain with prolonged sitting, walking, and standing. He reported during the June 2019 examination that flare ups of severe back pain occurred approximately twice per week, lasted for approximately 6 to 8 hours at a time, and required him to use more pain medication than usual. The examiner who conducted the September 2014 examination noted that pain could significantly limit functional ability during flare ups or when the back was used repetitively over a period of time, but he was unable to specify the extent of any additional functional impairment of the spine during flare ups or with repeated use over time because the Veteran was not experiencing a flare up during the examination. The examiner who conducted the June 2019 examination specified that forward flexion of the spine would be to 20 degrees with repeated use over a period time and during flare ups. The Board acknowledges that forward flexion of the spine was recorded as being to 65 degrees during the May 2016 examination and the examiner who conducted that examination noted that the Veteran did not report any flare ups of back symptoms, that there was pain associated with all ranges of spinal motion noted during the examination, and that the pain did not result in/cause functional loss. However, the examiner later made contradictory findings that there was no evidence of pain during the examination, that pain could significantly limit functional ability during flare ups or when the joint was used repeatedly over a period of time, and that the degree of additional spinal limitation due to pain could not be determined because the Veteran was not experiencing a flare up during the examination. Also, the Veteran’s representative specified in her November 2020 statement that the Veteran began to experience flare ups of spinal pain that resulted in additional reduced spinal motion approximately 6 months prior to submitting his increased rating claim. Moreover, the Veteran has reported that he uses medication to alleviate his back symptoms and that flare ups require the use of increased medication. Significantly, however, “the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In other words, the Board cannot consider the ameliorative effects of medication unless medication is referenced in the applicable diagnostic code. That is precisely the situation in this case. The Veteran’s medication has occasionally ameliorated the effects of his back disability. In her November 2020 statement, the Veteran’s representative contended that a 40 percent rating is warranted for the Veteran’s service-connected back disability during the entire claim period. In light of the range of motion measurements that were recorded during the September 2014 and June 2019 examinations, the fact that pain began at 30 degrees of flexion during the September 2014 examination, the Veteran’s reports of severe flare ups of back symptoms which occur multiple times per week and last for hours at a time, the fact that the September 2014 and May 2016 examiners were unable to provide sufficient information pertaining to the extent of any additional functional impairment of the spine during flare ups and with repeated use over time, the inconsistent findings made by the May 2016 examiner, the information provided by the June 2019 examiner as to the ranges of spinal motion during flare ups and with repeated use over time, and not taking into account the ameliorative effects of the Veteran’s medication, the Board agrees with the Veteran’s representative and finds that the symptoms of the Veteran’s service-connected back disability have most closely approximated the criteria for a 40 percent rating under the General Rating Formula (which contemplates limitation of flexion of the thoracolumbar spine to 30 degrees or less) during the entire claim period. The Board also finds that a rating higher than 40 percent is not warranted at any time during the claim period. Specifically, there has been no showing of any ankylosis at any time during the claim period and the Veteran has not experienced any incapacitating episodes of IVDS involving the thoracolumbar spine. Ankylosis is defined in general as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland’s Illustrated Medical Dictionary (28TH Ed. 1994) at 86). The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). There is no evidence that the Veteran’s thoracolumbar spine has been fixed in position or ankylosed at any time during the claim period, he has retained the ability to move his spine (albeit a limited ability), and the absence of thoracolumbar spine ankylosis was specifically noted during the September 2014, May 2016, and June 2019 examinations. Also, there is no evidence that he has experienced any symptoms of IVDS of the thoracolumbar spine that required bed rest prescribed by a physician and treatment by a physician. Therefore, a rating in excess of 40 percent is not warranted on the basis of ankylosis or IVDS. In sum, a 40 percent rating, but no higher, for lumbar strain is warranted during the entire claim period. 3. Entitlement to a separate initial compensable rating for right lower extremity radiculopathy The General Rating Formula provides that objective neurologic abnormalities associated with service-connected back disability (including, but not limited to, bowel or bladder impairment) are to be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Under DC 8520, the following ratings apply to paralysis of the sciatic nerve: a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124A, DC 8520. With regard to rating neurological disabilities, cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The term “incomplete paralysis” 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124A. Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran has manifested right lower extremity neurological symptoms of the type and extent, frequency, and/or severity, as appropriate to warrant an initial 10 percent rating, but no higher, during the entire claim period. The above evidence reflects that during the claim period, the Veteran has experienced occasional radiation of his back pain to the right lower extremity, with associated cramping and foot burning (especially during flare ups of his back disability). Straight leg raise testing has occasionally been positive and he has been diagnosed as having lumbago with sciatica and pyriformis syndrome on the right. In her November 2020 statement, the Veteran’s representative contended that a separate rating is warranted for right lower extremity radiculopathy under DC 8520 during the entire claim period. The Board notes that the Veteran has provided some inconsistent information during the claim period with respect to the presence of lower extremity neurological symptoms. However, in light of the Veteran’s reported right lower extremity neurological symptoms and the diagnoses of lumbago with sciatica and pyriformis syndrome on the right that are documented in his treatment records, the Board agrees with the Veteran’s representative and finds that the evidence is at least evenly balanced as to whether the Veteran has experienced at most mild incomplete paralysis of the right sciatic nerve during the entire claim period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an initial 10 percent rating for right lower extremity radiculopathy under DC 8520 is warranted during the entire claim period. However, a single rating higher than 10 percent for right lower extremity radiculopathy is not warranted at any time during the claim period. In particular, the Veteran has only reported occasional radiation of his back pain to the right lower extremity, he has not reported any such radiating pain to his left lower extremity, his lower extremity muscle strength has consistently been shown to be normal (5/5) bilaterally, his lower extremity reflexes have been normal (2+) bilaterally, his lower extremity sensation has been shown to be normal bilaterally, and the neurological involvement in his right lower extremity has been wholly sensory. Overall, the Veteran has experienced at most mild incomplete paralysis of the right sciatic nerve. Therefore, an initial 10 percent rating, but no higher, is warranted for right lower extremity radiculopathy under DC 8520 during the entire claim period. See 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. § 4.7, 4.124A, DC 8520. 4. Additional Considerations As a final point, the Board notes that in conjunction with the increased rating claim decided herein, other than the issue of entitlement to a TDIU which is addressed below, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). II. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more 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. Among other things, disabilities of one or both lower extremities, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system (e.g., orthopedic) will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component 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. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU due to service-connected disabilities Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the Veteran’s service-connected disabilities do not preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. As a preliminary matter, the Board points out that the AOJ sent a letter to the Veteran in July 2020. This letter asked him to complete a formal application for a TDIU (VA Form 21-8940), in which he could report his education, employment history, and earnings. A copy of VA Form 21-8940 was included with the letter. The July 2020 letter was sent to the Veteran’s address of record and was not returned as undeliverable. A copy of the letter was also sent to his representative. The Veteran failed to respond to the July 2020 letter, did not submit any completed VA Form 21-8940, and has not otherwise provided any of the requested information pertaining to his education, employment history, or earnings. The Veteran is now service-connected for the following disabilities: residuals fracture, right femoral neck, rated 40 percent disabling; lumbar strain, rated 40 percent disabling; right lower extremity radiculopathy, now rated 10 percent disabling; limitation of flexion for residuals fracture, right femoral neck, rated noncompensable; and impairment of the hip due to residuals fracture, right femoral neck, rated noncompensable. His combined disability rating is now 70 percent. Hence, he meets the percentage requirements for a TDIU. See Id. The remaining question is whether his service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. In addition to the evidence set forth above, the reports of VA examinations dated in October 2008, March 2009, August 2009, and September 2014, a May 2015 VA primary care note, the May 2016 VA back examination report, the report of a VA hip examination dated in March 2018, a September 2019 VA social work risk assessment screening note, an October 2019 VA hip examination report, and a November 2019 VA administrative note indicate that the Veteran was a full-time student for a period of time beginning in January 2008 and that he subsequently worked as a police officer, a security guard, and a hospital laundry employee. The most recent evidence of his employment status are the September 2019 VA social work risk assessment screening note and the November 2019 VA administrative note, which reveal that he was employed on a full-time basis as a hospital laundry employee (although he was on leave due to non service-connected foot injuries). With respect to the symptoms of the Veteran’s service-connected residuals of right femoral neck fracture, he experienced right hip pain which increased with prolonged sitting, walking and running, weight placement on his trunk (e.g., a bookbag), and exposure to cold temperatures. He also experienced limited and painful hip motion and tenderness/pain to palpation of the right hip joint/soft tissues. Flare ups of hip pain resulted in decreased ranges of hip motion and limited his ability to sit, stand, and ambulate. The examiners who conducted the March 2018 and October 2019 VA hip examinations explained that the Veteran’s hip disability impacted his ability to work in that it limited his ability to stand, ambulate, and perform high impact activities. The Veteran is competent to report that his service-connected disabilities preclude him from working, as the question of whether a veteran can perform the physical and mental acts required by employment at a given time is one about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Nevertheless, the preponderance of the evidence supports a finding that his service-connected disabilities do not preclude him from securing and following substantially gainful employment. The Board acknowledges that his service-connected disabilities have resulted in functional impairments that would impact his ability to perform physical activities and sit for prolonged periods. However, the evidence does not indicate that he is unemployed and unable to secure or follow any substantially gainful occupation due to service-connected disabilities. Rather, the evidence reflects that he has been employed in various positions for varying periods of time and the most recent evidence of employment (the September 2019 VA social work risk assessment screening note and the November 2019 VA administrative note) indicates that he was employed on a full-time basis as a hospital laundry employee. Hence, despite the occupational limitations and impairments caused by his service-connected disabilities, he has maintained the ability to perform substantially gainful employment and is apparently still employed. As explained above, the AOJ sent a letter to the Veteran in July 2020 and asked him to complete a formal application for a TDIU (VA Form 21-8940), on which he could specify his education, earnings, and employment history. The Veteran failed to respond to the letter, did not submit any completed VA Form 21-8940, and has not otherwise provided any information pertaining to his employment history or his current employment status. Under 38 U.S.C. § 5107 (a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). Moreover, “[t]he duty to assist is not always a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran’s lack of response in this regard has resulted in a lack of evidence in support of his claim. Overall, the weight of the evidence is against a finding that the Veteran’s service-connected disabilities prevent him from securing and following all substantially gainful employment consistent with his education and occupational experience. Although his service-connected disabilities have resulted in symptoms that would cause some work impairments, his own reports and the above lay and medical evidence support a finding that his service-connected disabilities (either individually or collectively) do not result in an inability to secure and follow substantially gainful employment. (CONTINUED ON NEXT PAGE) For the foregoing reasons, the preponderance of the evidence is against entitlement to a TDIU. The benefit-of-the-doubt doctrine is therefore not for application in this instance and a TDIU is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.