Citation Nr: 21007972 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-45 039 DATE: February 11, 2021 ORDER Entitlement to increased ratings for herniated lumbar disc with degenerative disc disease, lumbar spine with intravertebral disc disease (IVDS) (back disability), currently rated as 20 percent disabling prior to September 20, 2018, and 40 percent thereafter, is denied. Entitlement to increased initial rating for radiculopathy in the bilateral lower extremities, currently rated as 10 percent disabling prior to September 20, 2018, is denied. Entitlement to a rating of 30 percent for radiculopathy in the bilateral lower extremities, beginning September 20, 2018, is granted. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service-connected disabilities, beginning November 15, 2017, is granted. FINDINGS OF FACT 1. Prior to September 20, 2018, the Veteran’s back disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. Beginning September 20, 2018, the Veteran’s back disability is manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less. 3. Prior to September 20, 2018, the Veteran’s radiculopathy in the bilateral lower extremities was manifested by mild incomplete paralysis. 4. Beginning September 20, 2018, the Veteran’s radiculopathy in the bilateral lower extremities is manifested by severe incomplete paralysis. 5. Beginning November 15, 2017, the criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). CONCLUSIONS OF LAW 1. Prior to September 20, 2018, the criteria for a rating greater than 20 percent for a back disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5243). 2. Beginning September 20, 2018, the criteria for a rating greater than 40 percent for a back disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5243). 3. Prior to September 20, 2018, the criteria for a rating greater than 10 percent for radiculopathy in the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a (Diagnostic Code 8526). 4. Beginning September 20, 2018, the criteria for a rating of 30 percent for radiculopathy in the bilateral lower extremities have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a (Diagnostic Code 8526). 5. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1985 to March 1993 and from May 2003 to October 2003. This matter comes before the Board of Veterans’ Appeals (Board) from the August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO. The Veteran appeared at a February 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Increased Rating 1. Entitlement to increased ratings for herniated lumbar disc with degenerative disc disease, lumbar spine with intravertebral disc disease (IVDS), currently rated as 20 percent disabling prior to September 20, 2018, and 40 percent thereafter. The Veteran contends that he is entitled to a higher rating for his back disability. The Veteran’s back disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran’s back disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 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. Id. at Note 1. [Include any other relevant Note(s) to DC 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Prior to September 20, 2018 The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a back disability based on incapacitating episodes. The Veteran does have IVDS, however, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. In July 2014, the Veteran underwent a VA back examination. The examiner noted that the veteran is diagnosed with herniation of the lumbar disc as well as degenerative disc disease of the lumbar spine with IVDS and radiculopathy with bilateral femoral nerve involvement. The Veteran’s initial range of motion was as follows: forward flexion limited to 45 degrees (with objective evidence of painful motion beginning at 30 degrees); extension limited to 10 degrees (with objective evidence of painful motion beginning at 10 degrees); right and left lateral flexion limited to 15 degrees (with objective evidence of painful motion beginning at 15 degrees); and, left and right lateral rotation limited to 20 degrees (with objective evidence of painful motion beginning at 20 degrees). The Veteran was able to perform repetitive use testing with 3 repetitions with forward flexion limited to 45 degrees and extension limited to 10 degrees. No additional limitation in range of motion was noted following repetitive use testing. The July 2014 examiner noted that the Veteran has functional loss and/or functional impairment of the back due to less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. Additionally, pain was noted to significantly limit functional ability during flare-ups, or when the spine is used repeatedly over a period of time. However, no estimated degrees of additional range of motion loss were given. Additionally, the Veteran was noted to have diffuse muscular tenderness in the lumbar paraspinal area. No guarding or muscle spasm was noted and muscle strength testing was normal. Additionally, no muscle atrophy was present. The examiner noted that although the Veteran does have IVDS, the Veteran has not had any incapacitating episodes over the past 12 months due to this condition. No neurologic abnormalities were noted. Finally, the examiner concluded that the Veteran’s back condition impacts his ability to work as he can only lift 25 pounds occasionally, can only walk for 30-35 minutes, can only stand for 2-3 hours during an 8 hour work day, can only sit/stand for 1 hour at one time, and can only sit/stand for 2-3 hours during an 8 hour day. In July 2018, the Veteran underwent another VA back examination. The Veteran’s initial range of motion was as follows: forward flexion limited to 90 degrees, and extension, right and left lateral flexion, and right and left lateral rotation all limited to 30 degrees. Pain was noted on examination (on all movements), however, it did not cause functional loss. Additionally, objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine was noted. The examiner stated that this was severe. Additionally, evidence of pain with weight bearing was noted. The examiner noted that the Veteran was able to perform repetitive-use testing, however the Veteran refused active examination, although observed repetitions are unchanged from initial range of motion. The examiner noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limit functional ability with repeated use over a period of time. However, the examiner was unable to assess degree of functional loss after repetitive use. The July 2018 examiner noted that the Veteran has guarding due to the possibility of pain. Additional factors contributing to the Veteran’s disability were noted as instability of station, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran’s muscle strength testing was normal. The examiner stated that the Veteran has IVDS of the thoracolumbar spine, but has not had any episodes due to IVDS that required bed rest prescribed by a physician in the past 12 months. The examiner stated that the Veteran’s back condition impacts his ability to work as he cannot stand for prolonged periods of time, cannot perform manual labor duties or duties that require lifting greater than 20 pounds and cannot perform duties that require regular forward bending or twisting. Regarding Correia, the examiner stated that there is no objective evidence of pain on non-weight bearing and performing passive range of motion for the back cannot be performed or is not medically appropriate. No ankylosis or other neurological abnormalities were found. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a lumbar spine disability under the General Rating Criteria prior to September 20, 2018. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran experiences flare ups would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Based on the foregoing, the preponderance of the evidence is against of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for a lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Beginning September 20, 2018 The Veteran contends that he is entitled to a higher rating for his back disability beginning September 20, 2018. The Veteran’s lower lumbar disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lower lumbar disability based on incapacitating episodes. The Veteran has IVDS, however the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Additionally, a higher rating under the General Rating is not warranted. In September 2018, the Veteran underwent a VA back examination. The Veteran reported flare-ups that result in the inability to walk at all, severe pain, and the inability to get dressed. Additionally, the Veteran reported having functional loss resulting in the inability to walk, run, hike, sit or stand for long periods of time, and the inability to go up and down stairs. The Veteran’s initial range of motion was as follows: forward flexion limited to 20 degrees, extension limited to 0 degrees, right and left lateral flexion limited to 10 degrees, and right and left lateral rotation limited to 5 degrees. The Veteran was noted to be unable to move with any fluidity in any direction. Additionally, pain was noted on all ranges of movement resulting in functional loss as well as localized tenderness or pain on palpation was present. The Veteran was noted to have muscle spasm and guarding resulting in abnormal gait or abnormal spine contour. The Veteran was noted to use a cane and has lost lumbar lordosis. Additionally, the Veteran experiences less movement than normal, disturbance of locomotion, interference with sitting, interference with standing, and pain when sitting or standing. No muscle atrophy was noted. The examiner noted that the Veteran’s back condition impacts his ability to work as he is unable to ambulate smoothly, bend over, kneel, squat, run, or walk short distances. No ankylosis or other neurologic abnormalities were noted. The examiner also stated that the veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner stated that pain significantly limits functional ability with repeated use over a period of time as well as with flare ups. However, in the Board’s August 2020 remand, the Board found that the September 2018 examination was not adequate for rating purposes as the examination does not include all of the information needed to determine whether a higher rating is warranted based on additional functional loss on repetitive use over time or during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Board found that a remand was warranted for another VA back examination. Subsequently, in November 2020, the Veteran underwent a VA back examination. When asked to perform range of motion testing, the Veteran reported that he “could not do that.” The examiner asked the Veteran if he could show each movement even slightly, and the Veteran stated that his back “does not move at all.” It is not necessary to remand for a medical estimate at to what the range of motion limitations for the back would be if the Veteran were able stand up for the testing. Specifically, there is no evidence of unfavorable ankylosis at any time during the period under review. Nor is there evidence of incapacitating episodes lasting at least 6 weeks during the preceding 12 months, with such an episode being defined for rating purposes as a period of acute signs and symptoms due to IVDS that requires bed rest prescribe by a physician and treatment by a physician. 38 C.F.R. § 4.71a , Diagnostic Code 5243, Note 1. Because the preponderance of the evidence is against finding entitlement to a rating in excess of 40 percent at any time beginning September 20, 2018, under either the General Rating Formula or the Formula for Rating IVDS, the claim must be denied. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The Board acknowledges the assertion that the Veteran’s symptoms during a flare-up are like unfavorable ankylosis. However, even when considering the functional limitation during a flare-up, the Veteran’s symptoms do not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. Specifically, in November 2020, the Veteran’s muscle strength testing was shown as active movement against some resistance in his hip and knee extension. Additionally, at the Veteran’s November 2020 peripheral nerves examination, the examiner stated that although the Veteran refused to perform range of motion testing and reported that his back does not move at all, the Veteran was observed being able to arch his back and bend over to take off and put back on his shoes independently during the examination. Additionally the examiner noted that although the examiner stated that he cannot sit longer than 10 minutes, the Veteran sat in the lobby for about 40 minutes (not fully observed) and sat in a chair continuously for almost 30 minutes (observed) during the appointment without standing or objective signs of increasing discomfort. The examiner concluded that some subjective reports of the Veteran’s functional loss are not fully supported by examination findings and records in the veteran’s claims file. Therefore, the Board finds that entitlement to a rating in excess of 40 percent for a lower lumbar disability beginning September 20, 2018 is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). 2. Entitlement to increased initial ratings for radiculopathy in the bilateral lower extremities, currently rated as 10 percent disabling prior to September 20, 2018, and 20 percent disabling thereafter The Veteran contends that he is entitled to a higher rating for his radiculopathy in his bilateral lower extremities. Paralysis of the anterior crural nerve (femoral) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. 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). Prior to September 20, 2018 The Veteran contends that his radiculopathy in his bilateral lower extremities warrants a rating greater than 10 percent prior to September 20, 2018. In July 2014, the Veteran underwent a VA examination. The examiner stated that the Veteran has radicular pain due to radiculopathy. The examination report noted that the Veteran experiences mild intermittent pain (usually dull) and mild paresthesias and/or dysesthesias in the bilateral lower extremities. The examiner stated that the severity of the Veteran’s radiculopathy is mild. The Veteran’s reflexes were normal and no muscle atrophy was noted. The Veteran also had normal sensation testing. A private February 2018 treatment note states that the Veteran noticed right-sided weakness and numbness in his right leg. The Veteran also stated that his legs and feet spasm particularly at night. In July 2018, the Veteran underwent another VA examination. The Veteran had decreased sensation in the left lower extremity. The examiner stated that the Veteran did not have any radicular pain or any other signs or symptoms due to his radiculopathy. The Veteran’s reflex examination was normal and no muscle atrophy was present. Based on the above, the Board finds that prior to September 20, 2018, the disability was primarily manifested by impairment of motor functions and pain. The Board also finds that the most probative evidence of record is against a finding that the disability was manifested by trophic changes, sensory disturbance, loss of reflexes, muscle atrophy, and complete paralysis prior to September 20, 2018. The Board thus finds that the level of impairment is most analogous to mild/moderate incomplete paralysis prior to September 20, 2018. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. 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 radiculopathy in the bilateral lower extremities prior to September 20, 2018. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Beginning September 20, 2018 The Veteran contends that his radiculopathy in his bilateral lower extremities warrants a rating higher than 20 percent beginning September 20, 2018. In September 2018, the Veteran underwent another VA examination. The Veteran’s reflex examination was normal. However, the Veteran had decreased sensation in his bilateral thigh, knee, lower leg, ankle, foot, and toes. The examiner noted that the Veteran has radicular symptoms that manifest in bilateral mild constant pain (may be excruciating at times), moderate intermittent pain (usually dull), mild paresthesias and/or dysesthesias, and mild numbness. The examiner concluded that the Veteran’s radiculopathy in the bilateral lower extremities is moderate. In November 2020, the Veteran underwent a VA peripheral nerves examination. The examiner stated that the Veteran is diagnosed with radiculopathy in the bilateral lower extremities. The Veteran’s condition is manifested by severe constant pain (may be excruciating at times), severe paresthesias and/or dysesthesias, and severe numbness in the bilateral lower extremities. The Veteran’s muscle strength testing in the lower extremities was active movement against some resistance. No muscle atrophy was noted. The Veteran’s reflexes in the knee were hyperactive without clonus and were hypoactive in the right ankle and normal in the left ankle. Additionally, sensation was decreased in the bilateral lower leg, ankle, foot, and toes. The Veteran also had trophic changes on the ankle on both legs (thin and shiny skin with decreased hair growth). The examiner concluded that the Veteran’s sciatic nerve results in moderate incomplete paralysis. The examiner also noted that the Veteran uses a walker on a constant basis. Finally, the examiner stated that the Veteran’s condition impacts his ability to work as he cannot drive, stand without walker, can only walk less than 50 feet with a walker, and cannot run. Based on the above, the Board finds that the disability, beginning September 20, 2018, is primarily manifested by impairment of motor functions, sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, and complete paralysis. The Board thus finds that the level of impairment is most analogous to severe incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is in favor the Veteran’s claim for a rating of 30 percent for radiculopathy in the bilateral lower extremity beginning September 20, 2018. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to service connected disabilities A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently in receipt of service connection for obstructive sleep apnea, evaluated as 50 percent disabling beginning March 16, 2015; herniated lumbar disc with degenerative disc disease, lumbar spine with IVDS, evaluated as 20 percent beginning February 28, 2013 and from 40 percent from September 20, 2018; radiculopathy in the bilateral lower extremities, evaluated as 10 percent disabling prior to September 20, 2018 and 30 percent thereafter (as granted above). It is the established policy of VA that all Veterans who are unable to secure or follow a substantially gainful occupation by reason of service connected disability or disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). TDIU is precluded for any period of gainful employment, which is generally defined as annual earnings above the poverty threshold. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (proof of unemployment is necessary to raise a TDIU claim). Marginal employment is found whenever the Veteran’s earned annual 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. However, 38 C.F.R. § 4.16 further provides an exception to the income limitation regarding employment in a protected environment, such as family business or sheltered workplace, on a facts found basis. Id. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether his or her service-connected disabilities, alone, are of sufficient severity to produce unemployability. Factors to be considered are the Veteran’s “education, employment history and vocational attainment.” See 38 C.F.R. § 4.16(b). On the Veteran’s June 2018 application for increased compensation based on unemployability, the Veteran stated that he last worked in November 2017 as a city bus driver but left because of his disability. No other employment was listed. The Veteran’s highest level of education was noted as four years of high school. At the Veteran’s July 2018 back examination, the examiner stated that the Veteran cannot stand for prolonged periods of time, cannot perform manual labor duties or duties that require lifting greater than 20 pounds, and that the Veteran cannot perform duties that require regular forward bending or twisting. At the Veteran’s September 2018 VA sleep apnea examination, the examiner stated that the Veteran’s sleep apnea impacts his ability to work as daytime somnolence is still a problem. A November 2020 individual unemployability statement regarding the Veteran’s lumbar spine disability states that the Veteran can perform sedentary work involving exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, and pull. The examiner stated that sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. At the Veteran’s November 2020 VA peripheral nerves examination, the examiner stated that the Veteran’s bilateral radiculopathy in the lower extremities impacts his ability to work as he cannot drive, stand without walker, can only walk less than 50 week with a walk, and cannot run. (Continued on the next page)   Therefore, after reviewing all the medical and lay evidence, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, beginning November 15, 2017, the date after the Veteran last worked full-time. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.