Citation Nr: 21007013 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 12-17 895A DATE: February 8, 2021 ORDER An increased initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with depression prior to May 31, 2018, and in excess of 70 percent therefrom, is denied. An increased initial evaluation in excess of 10 for irritable bowel syndrome (IBS) prior to June 6, 2018, and in excess of 30 percent therefrom, is denied. An increased initial evaluation in excess of 10 percent for shin splints/stress fracture, right lower extremity, is denied. An increased initial evaluation in excess of 10 percent for shin splints/stress fracture, left lower extremity, is denied. An increased initial evaluation in excess of 20 percent for lumbar strain with intervertebral disc syndrome (IVDS) is denied. Effective August 21, 2010, an initial evaluation of 10 percent for right lower extremity radiculopathy (sciatic nerve), is granted. An increased initial evaluation for right lower extremity radiculopathy (sciatic nerve) in excess of 10 percent is denied. An increased initial evaluation for right lower extremity radiculopathy (femoral nerve) in excess of 10 percent is denied. Effective August 21, 2010, an initial evaluation of 10 percent for left lower extremity radiculopathy (sciatic nerve), is granted. An increased initial evaluation for left lower extremity radiculopathy (sciatic nerve) in excess of 10 percent is denied. An initial compensable evaluation for left lower extremity radiculopathy (femoral nerve) in excess of 10 percent is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Prior to May 31, 2018, the severity, frequency, and duration of symptoms of the Veteran’s PTSD with depression did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. Since May 31, 2018, the severity, frequency, and duration of the Veteran’s PTSD with depression symptoms has not more closely approximate total occupational and social impairment. 3. Prior to June 6, 2018, the Veteran’s IBS did not more nearly approximate a severe disability picture. 4. Since June 6, 2018, the Veteran’s IBS disability picture has been contemplated by the maximum 30 percent rating assigned. 5. The shin splints/stress fracture of the right lower extremity and left lower extremity has been manifested by no worse than slight impairment. 6. The Veteran’s lumbar strain with IVDS has not manifested by symptoms more nearly approximating forward flexion of the thoracolumbar spine 30 degrees or less; ankylosis; or incapacitating episodes. 7. Prior to June 6, 2018, the Veteran’s left and right lower extremity radiculopathy involving the sciatic nerve was manifested by mild impairment. 8. From June 6, 2018, the Veteran right and left radiculopathy, involving the sciatic and femoral nerves has been manifested by moderate impairment. 9. The Veteran’s service-connected disabilities do not preclude securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased initial evaluation in excess of 50 percent for PTSD with depression prior to May 31, 2018, and in excess of 70 percent therefrom have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an increased initial evaluation in excess of 10 for IBS prior to June 6, 2018, and in excess of 30 percent therefrom have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.114, DC 7319. 3. The criteria for an increased initial evaluation in excess of 10 percent for shin splints/stress fracture, right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5262. 4. The criteria for an increased initial evaluation in excess of 10 percent for shin splints/stress fracture, left lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5262. 5. The criteria for an increased initial evaluation in excess of 20 percent for lumbar strain with IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5243. 6. Effective August 21, 2010, the criteria for an initial 10 percent evaluation for right lower extremity radiculopathy (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520. 7. The criteria for an increased initial evaluation for right lower extremity radiculopathy (sciatic nerve) in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520. 8. The criteria for an increased initial evaluation for right lower extremity radiculopathy (femoral nerve) in excess of 10 percent from June 6, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8526. 9. Effective August 21, 2010, the criteria for an initial 10 percent evaluation for left lower extremity radiculopathy (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520. 10. The criteria for an increased initial evaluation for left lower extremity radiculopathy (sciatic nerve) in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520. 11. The criteria for an increased initial evaluation for left lower extremity radiculopathy (femoral nerve) in excess of 10 percent from June 6, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8526. 12. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2005 to August 2010. This case is on appeal from March 2011 and August 2011 rating decisions. In April 2017, the Veteran testified at a Board hearing. The Board previously remanded these matters in December 2017. The Board also remanded a claim of service connection for traumatic brain injury (TBI). When the case was in remand status, in a July 2020 rating decision, the RO granted service connection for TBI, plus post-concussive headaches. As that benefit sought on appeal was granted in full, that issue is no longer before the Board. The July 2020 rating decision awarded increased ratings for several of the claims, which has resulted in the staged initial ratings now on appeal. The July 2020 rating decision also granted separate 10 percent ratings for right and left lower extremity radiculopathy. Although not certified on appeal, the ratings for lower and right lower extremity radiculopathy are part and parcel of the lumbar spine rating appeal. See 38 C.F.R. § 4.71a, DC 5237, Note 1 (evaluate any associated objective neurologic abnormalities... separately). In October 2020, the Veteran withdrew his request for a second Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. An increased initial evaluation in excess of 50 percent for PTSD with depression prior to May 31, 2018, and in excess of 70 percent therefrom. The Veteran is seeking a higher initial rating for PTSD. The appeal period now before the Board begins in August 2010, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a 50 percent rating prior to May 31, 2018, and a 70 percent rating beginning from that date. The RO has since combined the disability of PTSD with the rating for his now-service-connected TBI. According to the July 2020 rating decision, this was because a VA examiner in June 2018 and January 2020 found that it was “difficult to decipher and isolate the symptoms” of each condition. Nonetheless, as the evidence indicates that the psychiatric symptomatology of the TBI and PTSD disabilities may not be adequately separated, the Board will proceed by addressing whether a higher rating may be assigned for the psychiatric symptomatology alone, regardless of whether it is attributable to PTSD or TBI. A. Schedular Criteria Evaluations of mental health disorders, such as the Veteran’s service-connected PTSD with depression, are assigned under the provisions of 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, DC 9411. General Rating Formula for Mental Disorders: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name 100 Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships 70 Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships 50 Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) 30 Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication 10 A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication 0 Under General Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). B. Discussion Prior to May 31, 2018 For this period, VA and private treatment records, a December 2010 VA examination, and the Veteran’s lay statements show that the disability was manifested by symptoms associated with a 50 percent rating. For example, at the December 2010 VA examination, he complained of poor sleep, nightmares, problems with his memory and concentration, some issues related to anger and irritability, intrusive thoughts about service, a strong feeling of survivor guilt, and a strong startle response with hypervigilant behavior. Later VA medical records also show complaints involving memory and concentration. A VA neuropsychiatric evaluation in September 2016, however, shows that his complaints of ongoing problems in concentration and focus were due to a nonservice-connected Attention Deficit Hyperactivity Disorder, inattentive type (ADHD), and Reading Disability. As that condition is not service-connected, the associated symptomatology cannot be considered in assigning a disability rating for PTSD. At a January 2011 TBI VA examination, the Veteran denied anxiety and mood swings, but reported a growing problem with depression saying that he felt sad and sometimes hopeless. By the time of a November 2015 VA Mental Health clinic intake assessment, however, he denied any significant onset of anxiety or depression symptomatology. It was noted that he had a diagnosis of PTSD, but his PTSD test responses showed only moderate to mild symptoms. His chief complaints was sleep onset and maintenance difficulties (and concentration/ attention difficulties). For the remainder of this staged rating period, the VA Mental Health records, beginning from a September 2016 consultation, repeatedly include the notation that he “says he was diagnosed with PTSD in the past but has no active symptoms at this time.” Consistent with this statement, the September 2016 VA Neuropsychiatric evaluation notes his report that he had a reduction in many of his PTSD symptoms in the past several years, although he still reported persisting hypervigilance in public places, seating himself in positions of observation when at restaurants, and continuing weekly night terrors. Thus, the medical records indicate symptoms involving sleep difficulties, hypervigilance, and irritability. There is no indication of periods of violence associated with the irritability. These symptoms are consistent with a 50 percent rating. At his April 2017 Board hearing, he described the ongoing sleep difficulties, including night terrors. Board Hr’g Tr. 27, 29. He also described difficulty making friends and episodes of depression where he could not do things he would normally do. Board Hr’g Tr. 44-45. His mother also described irritability. Board Hr’g Tr. 46. He also reported suicidal ideation “a lot.” Board Hr’g Tr. 43. He denied any suicide attempts. Board Hr’g Tr. 43. His parents suspected a suicide attempt on one occasion when he took too much medication with alcohol. Board Hr’g Tr. 79. The Veteran expressly denied that this was a suicide attempt. Board Hr’g Tr. 43-44. His parents and sister described close contact with the Veteran. Board Hr’g Tr. 67, 75, 79. The Veteran reported that he had previously been married, but had been “shut off” emotionally during the marriage. Board Hr’g Tr. 48. At present, he had a girlfriend and played volleyball to try to meet new people. Board Hr’g Tr. 46, 59. His father explained that the Veteran was running his own business. Board Hr’g Tr. 76. He described the Veteran as being self-sufficient and had made decisions in the business that were “very profitable.” Board Hr’g Tr. 76. His father remembered only one incident where the Veteran had difficulty working with a customer. Board Hr’g Tr. 78. Otherwise, according to the Veteran and his father, the Veteran was able to work from home and adapt his schedule accordingly. Board Hr’g Tr. 73, 78. He also hired temporary workers when more help was needed. Board Hr’g Tr. 71-72, 81. The Veteran’s testimony indicates some higher-level symptoms. However, the severity, frequency, and duration of these symptoms did not more closely approximate the symptoms contemplated by a 70 percent rating or higher. For example, his mother described irritability. There has been, however, no indication of episodes of violence. He described difficulty making friends and a divorce from his wife, but was close to his family and played volleyball to make friends. This indicates an ability to establish and maintain effective relationships. He reported episodes of depression, but the evidence shows he retained the ability to function independently, appropriately, and effectively. Relatedly, his father described some difficulty in stressful circumstances. But, he was able to adapt to the stressful circumstances by adjusting his schedule, working from home when needed, and hiring temporary workers when work demands required. Of note, the Veteran also described suicidal ideation “a lot.” Overall, however, his symptoms, including suicidal ideation, did not result in occupational and social impairment with deficiencies in most areas. See Bankhead, 29 Vet. App. at 20. The Board is also mindful that the frequency, severity, and duration of the symptoms he described at the Board hearing is directly at odds with his reports to his VA providers, where he denied active symptoms except for the reports of sleep difficulties and irritability. The 70 percent rating from May 31, 2018, was assigned based on a VA examination conducted that date. That is the date a factually ascertainable increase in severity is first shown. As also discussed below, the May 2018 VA examiner identified two higher-level symptoms: difficulty adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. As indicated, the VA examiner’s finding of difficulty adapting to stressful circumstances is at odds with the evidence showing that the Veteran was able to adequately adapt to stressful circumstances in running his own business independently by setting his own hours, working from home when needed, and hiring temporary workers when work demands required. Also, as indicated, the suicidal ideations alone did not cause occupational and social impairment with deficiencies in most areas. In short, prior to May 31, 2018, the Veteran’s symptoms were less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Rather, the Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with some reduced reliability and productivity. As such, the preponderance of the evidence is against a higher rating prior to May 31, 2018, the benefit-of-the-doubt doctrine is not applicable, and a rating in excess of 50 percent is not warranted prior to May 31, 2018. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Since May 31, 2018 For this period, the VA treatment records and May 2018 VA examination, affirmatively show an absence of all specific symptomatology listed at the 100 percent disability level. As with the prior staged rating period, a separate 2018 VA Mental Health Clinic report states that the Veteran did not feel anxious anymore with his service dog and, although he had been diagnosed with PTSD in the past, he had no other active symptoms at that time. In March 2019, he reported that his only concern was not sleeping well. Beginning February 2020, he described not doing well as he was feeling anxious and depressed at time. Later in February 2020, his mother reported to his VA providers that she had taken him to the emergency room because he was having suicidal thoughts. This disability picture is consistent with the 70 percent rating. The only instance of potentially higher-level symptoms was when his mother took him to the emergency room for suicidal ideation in February 2020. However, there is no indication that he was an actual danger to himself or others at that time or any other time. Moreover, without regard to the specific symptoms, the evidence does not show a total occupational or social impairment. Occupationally, he continued to run his own business during this time period. Potentially favorable, he reported in an August 2020 TDIU form (as discussed in greater detail herein below) that he was “seriously considering” closing this business. However, there is no indication in the record that he has actually done so. Socially, it is clear from the evidence that he has maintained an effective relationship with his family. Hence, it cannot be concluded that he had a total social and occupational impairment, both of which are required for a 100 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The Veteran has experienced occupational and social impairment with deficiencies in most areas. As such, the preponderance of the evidence is against a higher rating since May 31, 2018, the benefit-of-the-doubt doctrine is not applicable, and a rating in excess of 70 percent is not warranted since to May 31, 2018. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. An increased initial evaluation in excess of 10 for IBS prior to June 6, 2018, and in excess of 30 percent therefrom. The Veteran is seeking a higher initial rating for IBS. The appeal period now before the Board begins in August 2010, which is when service connection went into effect for this condition. See Fenderson, 12 Vet. App. at 119. This disability has been assigned a 10 percent rating prior to June 6, 2018, and a 30 percent rating beginning from that date. A. Schedular Criteria The Veteran’s IBS disability has been assigned a disability rating under DC 7319 of 38 C.F.R. § 4.114. The applicable rating schedule is set forth as follows: 7319 Irritable colon syndrome (spastic colitis, mucous colitis, etc.): Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress 30 Moderate; frequent episodes of bowel disturbance with abdominal distress 10 Mild; disturbances of bowel function with occasional episodes of abdominal distress 0 When deciding these claims for increased disability ratings, the Board must particularly consider the credibility of a claimant’s statements reporting symptoms of a “personal affliction,” such as a veteran’s statements that he had constipation. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009). B. Discussion Prior to June 6, 2018 According to a December 2010 VA examination, the Veteran had daily symptoms involving up to 6 bowel movements per day. He did not have any constipation. He reported to his VA primary care provider in November 2015 that he had IBS symptoms until recently when he started using probiotics, which had helped “tremendously.” He only had loose stools 1 to 2 times per day. He denied all other symptoms. By September 2016, he reported diarrhea 10 times a day about 1-2 times a week. In May 2017, he reported that he had diarrhea “a lot less now,” with “on and off bouts.” At his April 2017 Board hearing, the Veteran explained that he limited his diet to specific foods to avoid the problems. Board Hr’g Tr. 50. Otherwise, he would have bowel movements up to 8 to 10 times per day. Board Hr’g Tr. 50. He also avoided situations that made him nervous as this would set off his IBS symptoms. Board Hr’g Tr. 50. His mother testified that she would cook healthy, but he was still in the bathroom the whole time. Board Hr’g Tr. 67. Overall, this evidence is consistent with frequent episodes of abdominal distress, but not diarrhea with more or less constant abdominal distress. The reports in November 2015 and September 2016 specifically indicate that his symptoms were more episodic in nature and not constant. His testimony also shows that his symptoms were dependent on his diet and situational stressors. Hence, it cannot be concluded that he had symptoms that were more or less constant in nature. Accordingly, the Veteran’s symptoms prior to June 6, 2018, corresponded to the criteria for a 10 percent rating under DC 7319, for moderate impairment, but severe impairment was not shown. A factually ascertainable increase is not shown until June 6, 2018, as discussed below. Thus, the preponderance of the evidence is against a higher rating prior to June 6, 2018, the benefit-of-the-doubt doctrine is not applicable, and a rating in excess of 10 percent is not warranted prior to June 6, 2018. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Since June 6, 2018 The evidence for this time period consists of a June 2018 VA examination. The Veteran at that examination reported worse symptoms with “sometimes” bowel movements up to 8 times daily. The examiner noted diarrhea involving explosive, uncontrolled watery stool; alternating diarrhea and constipation; and abdominal distension involving bloating and pain precede diarrhea. The examiner characterized the symptoms as involving frequent episodes with more than 7 exacerbations and/or attacks in the prior 12 months. The examiner noted an impact on his ability to work due to unpredictable diarrhea and urgency causing encopresis if immediate toilet facility access was unavailable, plus stress incontinence of fecal material with heavy lifting. This evidence shows manifestations of IBS equating to severe impairment. A 30 percent rating has been assigned since June 6, 2018. This is the maximum schedular rating under DC 7319. Thus, a rating in excess of 30 percent since June 6, 2018 is not warranted. 3. An increased initial evaluation in excess of 10 percent for shin splints/stress fracture, right lower extremity. 4. An increased initial evaluation in excess of 10 percent for shin splints/stress fracture, left lower extremity. The Veteran is seeking a higher initial rating for shin splints/stress fracture of the right and left lower extremities. The appeal period now before the Board begins in August 2010, which is when service connection went into effect for each disability. See Fenderson, 12 Vet. App. at 119. Each disability has been assigned a 10 percent rating throughout the entire appeal period. A. Rating Schedule The Veteran’s disability has been assigned a disability rating under DC 5262 of 38 C.F.R. § 4.71a. The applicable rating schedule is set forth as follows: 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Marked” means having a distinctive or emphasized character. B. Discussion At his April 2017 Board hearing, the Veteran testified that he still had problems as it did not take much to cause pain. Board Hr’g Tr. 58. For example, he described playing volleyball once per week, which caused his legs to hurt for a couple of days afterwards. Board Hr’g Tr. 59. He could not run every day. Board Hr’g Tr. 59. At a December 2010 VA examination, the Veteran described pain in his shins if he ran, so he did not run. Otherwise, he had infrequent flares lasting a couple of days. At a June 2018 VA Ankle examination, the Veteran described pain now worse, which kept him awake at night after any physical training or sports activity. Motrin did nothing to relieve the pain. He had flare-ups described as pain and stiffness and loss of balance. He also had reduced endurance standing, lifting, walking, and climbing stairs. Physical examination revealed limitation of motion with the greatest limitation occurring in each ankle with flare-ups involving dorsiflexion to 5 degree and plantar flexion to 20 degrees. The June 2018 VA examiner also conducted a knee examination as the Veteran described pain traveling to the knees during flare-ups. The examiner did not provide limitation of motion findings during flare-ups, but explained that this was because the symptoms were due to shin pain rather than knee joint trouble. Most recently, a September 2018 VA primary care provider documented the Veteran’s report of pain progressively keeping him up at night. He was unable to exercise, and longer walks aggravated the pain. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss, including sleep disturbance, during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating malunion of the tibia or fibula with moderate knee or ankle disability. The Veteran’s symptoms occurred only with exercise or use over a period time. His primary complaints were interference with sleep and inability to exercise. Such symptoms are consistent with a “slight” disability picture. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. However, the current ratings assigned contemplate the full symptomatology affecting both the ankles and the knees, primarily the ankles. The June 2018 VA examiner explained why the shin splints did not affect the knee joints. Hence, separate ratings would involve pyramiding. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right or left shin splints. In denying such a rating, the Board finds the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, an initial rating in excess of 10 percent is not warranted for right and left shin splints. 5. An increased initial evaluation in excess of lumbar strain with IVDS currently evaluated as 20 percent disabling. The Veteran is seeking a higher initial rating for lumbar strain with intervertebral disc syndrome. The appeal period now before the Board begins in August 2010, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a 20 percent rating throughout the entire appeal period. A. Schedular Criteria The Veteran’s spine disability has been assigned a disability rating under DC 5243 of 38 C.F.R. § 4.71a, including under the General Rating Formula for Diseases and Injuries of the Spine. The applicable rating schedule is set forth as follows: THE SPINE Rating General Rating Formula for Diseases and Injuries of the Spine (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine 100 Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 Forward flexion of the thoracolumbar spine 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 20 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 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Disabilities of the spine involving IVDS are assigned under DC 5243, which provides that the disability is to be rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. See 38 C.F.R. § 4.71a, Note. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). B. Discussion The Veteran has IVDS, but the evidence, including VA examinations in December 2010 and June 2018, show that there were no incapacitating episodes. The preponderance of the evidence is also against a rating in excess of 40 percent under the General Rating Criteria. The Veteran testified at his April 2017 Board hearing that his symptoms were more frequent now. His back constantly went out, but was also aggravated by “just [ ] sitting down for so long.” His back would lock up and cause shooting pains down his legs. Board Hr’g Tr. 52. At a December 2010 VA examination, the Veteran had flexion to 80 degrees with no decreased on repetitive testing. At a June 2018 VA examination, he had flexion to 80 degrees, which was reduced to 45 degrees with flare-ups. The examiner noted a functional impact involving reduced endurance in sitting, standing, climbing stairs, and lifting over 20 pounds repetitively. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. He had, at worst, flexion limited to 45 degrees. Regarding neurological impairment, the June 2018 VA examiner summarized that the Veteran had no neurologic abnormalities apart from radiculopathy. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent. As such, the benefit-of-the-doubt doctrine is not applicable. Thus, an initial rating in excess of 20 percent is not warranted.   6. An increased initial evaluation for right lower extremity radiculopathy (sciatic nerve) prior to June 6, 2018, and in excess of 10 percent therefrom. 7. An increased initial evaluation for right lower extremity radiculopathy (femoral nerve) prior to June 6, 2018, and in excess of 10 percent therefrom. 8. An increased initial evaluation for left lower extremity radiculopathy (sciatic nerve) prior to June 6, 2018, and in excess of 10 percent therefrom. 9. An increased initial compensable evaluation for left lower extremity radiculopathy (femoral nerve) prior to June 6, 2018, and in excess of 10 percent therefrom. The Veteran is seeking a higher initial rating for radiculopathy. The appeal period now before the Board begins in August 2010, which is when service connection went into effect for the primary lumbar spine disability. See Fenderson, 12 Vet. App. at 119. Although service connection has not been made effective from that date, the rating schedule for the spine directs objective neurologic disabilities to be rated separately. Hence, by implication, a noncompensable (zero percent) rating is in effect for the disabilities prior to when the 10 percent rating was made effective on June 6, 2018. A. Schedular Criteria The Veteran is assigned separate 10 percent ratings for each lower extremity under DCs 8520 and 8526. The applicable rating schedule is set forth as follows: 8520 Paralysis of: Complete; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost 80 Incomplete: Severe, with marked muscular atrophy 60 Moderately severe 40 Moderate 20 Mild 10 8620 Neuritis. 8720 Neuralgia. 8526 Paralysis of: Complete; paralysis of quadriceps extensor muscles 40 Incomplete: Severe 30 Moderate 20 Mild 10 “Moderate” means limited in scope or effect. “Severe” is “of a great degree.” See www.merriam-webster.com/dictionary/severe. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). B. Discussion At an August 2010 VA examination, the Veteran reported pain radiating down both legs. At his April 2017 Board hearing, the Veteran described pain shooting down his legs. Thus, the evidence tends to show that radiculopathy had manifested prior to this date. The Board finds that the Veteran’s complaints of radiating pain are consistent with a mild disability picture under DC 8520. Accordingly, here, the Board finds that an initial 10 percent rating is warranted, effective August 21, 2010, for both right and left radiculopathy (sciatic). There is insufficient evidence to show that both the sciatic and femoral nerves were affected prior to June 6, 2018. As to whether a higher rating is warranted for sciatic nerve involvement, or separately for femoral nerve involvement from June 6, 2018, a June 2018 VA examination showed the following. Regarding impairment of motor functions, the VA examiner found deep tendon reflexes of 4+ at each knee; 1+ at the right ankle; and 2+ at the left ankle. Sensation in each lower extremity was decreased. Straight leg raise test was positive. The examiner found symptoms of severe pain in the right lower extremity; moderate pain in the left lower extremity; moderate paresthesias and/or dysesthesias in both lower extremities; and mild numbness in both lower extremities. The examiner specified that the femoral and sciatic nerves were involved. Overall, the VA examiner graded the Veteran’s right and left radiculopathy as moderate in severity. Based on the above, the Board finds that the disability is primarily manifested by pain and other symptoms consistent with a moderate disability level. This is consistent with a 20 percent disability level. The Veteran is currently assigned a 10 percent rating, rather than 20 percent, for femoral and sciatic involvement. However, when combining the separate ratings (10+10) under 38 C.F.R. § 4.25, a rating of 20 percent results. This is consistent with a moderate disability level under the rating schedule. To this end, the June 2018 VA examiner did not assess that the femoral and sciatic involvement were each separately moderate. Rather, the VA examiner indicated an overall moderate disability level. Hence, the combined 20 percent rating that results from the separate 10 percent ratings is consistent with the VA examiner’s assessment. A higher rating is not assignable as the evidence does not indicate a separate moderate disability level for any of the nerves involved. As indicated, the VA examiner graded the Veteran’s condition as overall medically moderate. The VA examiner did not indicate separate involvement at the moderate disability level for any nerves involved. At the VA examination, the Veteran described frequently pain shooting down his legs, sometimes causing him to lose his balance. He also reported a sleep interruption. This is consistent with a moderate disability level. In conclusion, the Board finds that the preponderance of the evidence is against higher ratings as outlined above. As such, the benefit-of-the-doubt doctrine is not applicable, and higher ratings are not warranted for right and left lower extremity radiculopathy. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 10. A TDIU In his August 2020 VA Form 21-8940, the Veteran wrote that he last worked full-time and became too disabled to work on March 1, 2020, which is also when his disabilities first affected full-time employment. He indicated that he left his last employment because of his disability and had not tried to obtain employment since becoming too disabled to work. The service-connected disabilities preventing him from securing or following any substantial gainful employment were PTSD, TBI, shin splints, IBS, and lumbar strain. He had a high school education with no other education or training. He also wrote that he was presently employed earning $1,500.00 per month in income with a total income of $25,000 during the prior 12 months. He explained that his disabilities had made it impossible for him to work. He had tried to keep his business running, but was seriously considering filing for bankruptcy because of his disabilities. The impairment of his mind and body kept him from gainful employment as his disabilities had become considerably worse since he left service. This evidence was submitted after the most recent supplemental statement of the case, but waiver of initial RO consideration is presumed. See 38 C.F.R. § 20.1305(c). A. Applicable Law Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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).   B. Discussion The Veteran’s TDIU application shows that he has remained in a substantially gainful occupation. He reported during a May 2018 VA examination that he collected only a small paycheck from his business as it was in general not profitable at that time. Yet, he gave his income on the TDIU application as $25,000 during the prior 12 months, and he reported earnings of $1,500.00 per month at that time. This would amount to $18,000.00 per year. The poverty threshold for one person in 2019 was $13,011.00; in 2020 it was $13,465.00. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Hence, the Veteran’s employment was more than marginal. Additionally, the Veteran is in receipt of a combined 100 percent rating, effective January 18, 2010. Thus, the time period from March 2020 is not relevant given this rating. Moreover, the assertion is for a combined TDIU; thus, a TDIU based on a single disability is not an issue expressly raised or reasonably raised by the record. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and a TDIU is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.