Citation Nr: 21021612 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-39 294 DATE: April 13, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to January 25, 2021 and 30 percent thereafter for service-connected degenerative disc disease (DDD) of the cervical spine is denied. Entitlement to a disability rating in excess of 20 percent for service-connected DDD of the lumbar spine is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Prior to January 25, 2021, the service-connected DDD of the cervical spine manifested as pain and limitation of motion with forward flexion is to 35 degrees with pain; there is no competent evidence of favorable ankylosis, or incapacitating episodes of intervertebral disc syndrome requiring prescribed bed rest. 2. From January 25, 2021, the service-connected DDD of the cervical spine manifested as pain and limitation of motion with forward flexion to 15 degrees or less; there was no competent evidence of ankylosis, or incapacitating episodes of intervertebral disc syndrome requiring prescribed bed rest for 4 weeks or more during the past 12 months. 3. Throughout the appeal period, the Veteran’s service-connected DDD of the lumbar spine more nearly approximated limitation of forward flexion of the thoracolumbar spine to greater than 30 degrees but less than 60 degrees, with no evidence of incapacitating episodes. 4. The Veteran’s service-connected disabilities do not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to January 25, 2021, the criteria for a schedular rating in excess of 20 percent for service-connected DDD of the cervical spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003, 5242. 2. From January 25, 2021, the criteria for a schedular rating in excess of 30 percent for service-connected DDD of the cervical spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5003, 5242. 3. The criteria for a disability rating in excess of 20 percent for service-connected DDD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5237. 4. The criteria for a TDIU based upon service-connected disabilities are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to December 1981 and July 2004 to May 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated February 2013 and April 2016 of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The February 2013 rating decision denied entitlement to a rating in excess of 20 percent for the service-connected cervical spine disability, as well as entitlement to a TDIU. The Veteran disagreed with the decision and a statement of the case (SOC) was issued in September 2015. He perfected a timely appeal in October 2015. The April 2016 rating decision denied a rating in excess of 20 percent for the service-connected lumbar spine disability. The Veteran disagreed with the denial and, after the issuance of a SOC in July 2018, he perfected an appeal in September 2018. In December 2018, the Veteran presented sworn testimony during a videoconference hearing in Montgomery, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. In an April 2019 Board decision, the claims were remanded for further evidentiary development. As will be explained below, review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a February 2021 rating decision, the RO increased the assigned rating for service-connected DDD of the cervical spine to 30 percent from January 25, 2021. The Veteran has not expressed satisfaction with the increased disability rating; this matter thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). A supplemental statement of the case (SSOC) was issued in January 2021. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. The Board recognizes that the issue of entitlement to a temporary total evaluation based on surgical or other treatment necessitating convalescence beyond May 1, 2012 was addressed in the September 2015 SOC. As indicated above, the Veteran perfected a timely appeal of all issues in October 2015. In his October 2015 VA Form 9, the Veteran explicitly argued that a temporary total evaluation as warranted from May 12, 2015 based upon a second cervical spine surgery, which was not previously considered. However, in an October 2015, the RO subsequently granted a temporary total evaluation based on surgical or other treatment necessitating convalescence from May 12, 2015 to September 1, 2015. To the Board’s knowledge, the Veteran has not disagreed with that decision. As such, said matter has been resolved and will be discussed no further herein. C.f., Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, 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 general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claims. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (“Secretary shall consider all information and lay and medical evidence of record in a case”). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s appeal. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. The Veteran’s cervical spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5242, which indicates degenerative arthritis and degenerative arthritis of the spine. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. The Veteran’s DDD of the lumbar spine, is currently rated under 38 C.F.R. §§ 4.71a, DC 5237, which indicates lumbosacral strain. These ratings have been assigned under DCs 5242-5243 (referencing both degenerative arthritis and IVDS, respectively). See 38 C.F.R. § 4.27. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5003 was only changed to clarify that it applies specifically to degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Additionally, the General Rating Formula for Diseases and Injuries of the Spine were not changed by the revisions to the musculoskeletal system, effective February 7, 2021. Under the applicable criteria, limitation of motion of the lumbar and cervical spine is rated under the General Rating Formula for General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Pursuant to the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 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 is not greater than 120 degrees; or, muscle spasms 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 when forward flexion of the thoracolumbar spine is 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. A 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 cervical spine greater than 15 degrees, but not greater than 30 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Following the criteria, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that normal forward flexion, extension, and left and right lateral flexion of the cervical spine are all zero to 45 degrees and left and right lateral rotation of the cervical spine are both zero to 80 degrees. 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 cervical spine is 340 degrees and the normal combine range of motion of the thoracolumbar spine is 240 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. Note (3) provides that 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) requires that each range of motion measurement be rounded to the nearest five degrees. Note (5) provides 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. Note (6) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. IVDS is rated under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating. 38 C.F.R. § 4.71a, DC 5243. The revisions to the musculoskeletal system, effective February 7, 2021 indicated that this diagnostic code should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; Diagnostic Code 5242 is to be assigned for all other diagnoses. Under the formula for rating IVDS based on incapacitating episodes, a 20 percent rating is warranted for 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 incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. For purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). 1. Entitlement to a disability rating in excess of 20 percent prior to January 25, 2021 and 30 percent thereafter for service-connected DDD of the cervical spine. Historically, the Veteran was awarded service connection for DDD of the cervical spine in an August 2008 rating decision; a 20 percent rating was assigned. In January 2012, the Veteran filed a claim of entitlement to an increased disability rating for the cervical spine disability. His claim was denied in a February 2013 rating decision. He disagreed with the denial and this appeal follows. As indicated above, a February 2021 rating decision increased the assigned rating for DDD of the cervical spine to 30 percent, effective January 25, 2021. In a February 2013 rating decision, the RO assigned a temporary total evaluation from January 5, 2012 to May 1, 2012 for the service-connected cervical spine disability based upon a surgical treatment necessitating a period of convalescence. Additionally, in an October 2015 rating decision, the RO assigned a temporary total evaluation from May 12, 2015 to September 1, 2015 for another surgical treatment necessitating a period of convalescence. As such, the Board will consider the increased rating claim excluding the assigned temporary total periods. For the reasons set forth below, the Board finds that, at no time during the appeal period, have the criteria for higher ratings for the service-connected DDD of the cervical spine been met or approximated. Private treatment records dated in March 2011 noted normal range of motion of the cervical spine with increased paravertebral muscular tenderness. The examiner noted diagnoses of cervical radicular pain and C4-C5 herniated nucleus pulposus (HNP), multiple degenerative disc changes with stenosis and bilateral carpal tunnel syndrome. VA treatment records dated in January 2012 indicated that the Veteran underwent an anterior cervical discectomy and fusion of C4-C5. VA treatment records dated in July 2012 indicated that the Veteran sought emergency department treatment due to a stiff neck with pain at 8/10. The Veteran was afforded a VA examination in February 2013 at which time the examiner confirmed a diagnosis of DDD of the cervical spine with radiculopathy of the right hand. The Veteran reported daily intermittent neck muscle cramps. He indicated that it hurts to hold his neck up. The Veteran stated that bending over gives him headaches and looking-up causes dizziness. He additionally reported that his hands stay hot all of the time. The Veteran denied flare-ups of cervical spine symptomatology. Range of motion testing showed forward flexion to 40 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 60 degrees. The Veteran exhibited pain with extension, as well as right and left lateral flexion. There was no additional limitation of motion with repetitive use testing. The examiner indicated that the Veteran experienced less movement of the cervical spine than normal, as well as pain on movement. There was no localized tenderness/pain on palpation. The examiner reported that guarding or muscle spasm was present, but did not result in abnormal gait or spinal contour. Muscle strength was intact. There was no muscle atrophy. The Veteran’s reflexes were intact and sensory examination was normal. He denied radicular pain. The examiner reported that the Veteran’s cervical spine disability did not result in incapacitating episodes and had no impact on his ability to work. VA treatment records dated in April 2015 documented the Veteran’s report of worsening neck pain. Private treatment records dated in May 2015 noted the Veteran’s report of neck pain and sensation of his hands being on fire. The Veteran subsequently underwent a C3-C4 anterior cervical discectomy and fusion on May 12, 2015. At the December 2018 Board hearing, the Veteran testified that he experiences neck cramps with sleeping. See the Board hearing transcript, pg. 3, 5-6. He reported daily neck pain and limitation of motion. Id. at pg. 6. The Veteran additionally endorsed right hand radiculopathy with loss of grip strength. Id. at pgs. 6-7. The Veteran was afforded a VA examination in January 2020 at which time the examiner diagnosed DDD of the cervical spine with radiculopathy of the bilateral upper extremities. The Veteran reported that his cervical spine symptoms have gradually worsened since their onset, particularly in the last year. He reported constant neck pain that is burning, shooting, and aching. There was associated numbness and tingling in the bilateral hands. The Veteran reported that his symptoms worsened with weather changes, sneezing, and coughing. He denied flare-ups of neck symptomatology; he stated, “[i]t is bad all the time.” With respect to functional impairment, the Veteran reported, “I can’t play with my grandchildren. I can’t look up or down. I can’t look side to side.” Range of motion testing showed forward flexion to 20 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The Veteran reported that he was unable to up, down, or side to side. Pain was noted on examination, which causes functional loss. There was pain with weight-bearing. The examiner additionally reported there was objective evidence of pain with nonweight-bearing. He explained that passive range of motion testing was not performed as it was not feasible to do this in a safe and reasonable manner. There was no additional limitation of motion with repetitive use testing. The examiner indicated that pain significantly limits the Veteran’s functional ability with repeated use over a period of time. The examiner estimated this functional impairment in terms of degrees; specifically, forward flexion to 15 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The examiner reported that the Veteran had muscle spasms and guarding, which resulted in abnormal gait or abnormal spinal contour. Muscle strength and reflexes were intact. Sensation to light touch was normal. The Veteran reported severe intermittent pain, severe paresthesias/dysesthesias, and severe numbness of the right and left upper extremities. The examiner concluded that the Veteran had bilateral involvement of C5/C6 nerve roots (upper radicular group). The examiner characterized the Veteran’s radiculopathy of the bilateral upper extremities as mild. The examiner reported there was no evidence of IVDS. He indicated that the Veteran’s neck disability required regular use of a brace. The examiner reported that the Veteran’s cervical spine disability does impact his ability to work; specifically, the examiner indicated that, in the twelve months prior to his retirement, the Veteran missed zero to one week of work due to his cervical spine disability. Applying the facts in this case to the criteria set forth above, the Board finds that a disability rating in excess of 20 percent is not warranted at any time prior to January 25, 2021. Specifically, although the evidence of record documents findings of limitation of motion, it does not indicate forward flexion of the cervical spine limited to 15 degrees or less, or favorable ankylosis of the cervical spine. See, e.g., the VA examination reports dated February 2013. There is no other objective evidence demonstrating symptoms producing impairment of range of motion of the cervical spine severe enough to warrant a 20 percent disability rating at any time prior to January 25, 2021. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5242. Therefore, a rating in excess of 20 percent is not warranted under the schedular criteria prior to January 25, 2021. Likewise, since January 25, 2021, the application of the facts in this case to the requisite criteria demonstrates that a disability rating in excess of 30 percent is not warranted. The RO granted a 30 percent rating from January 25, 2021 based upon a finding by the January 2021 VA examiner that the Veteran’s cervical spine disability resulted in limitation of forward flexion to 15 degrees with repeated use over time. The evidence of record does not however indicate that a rating in excess of 30 percent is warranted at any time during the period under consideration. Namely, there is no evidence of symptoms which produce or more nearly approximate unfavorable ankylosis of the entire cervical spine from January 25, 2021. Moreover, VA and private treatment records for this time period do not show treatment for cervical spine symptoms beyond complaints of chronic neck pain and stiffness. The Board additionally notes that, as indicated above, Note 1 of the General Rating Formula for Disease and Injuries of the Spine instructs to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. To this end, the Veteran is in receipt of a separate ratings for radiculopathy of the right and left upper extremities. See the rating decision dated February 2021. He has not asserted, nor does the record indicate, that he suffers from any additional neurological impairment due to his service-connected DDD of the cervical spine. With respect to both time frames at issue, the Board notes that the Veteran has reported significant pain including flare-ups as a result of his cervical spine disability. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1996). These symptoms were considered by the 20 percent and 30 percent assigned ratings. Critically, as detailed above, there is no evidence to corroborate additional functional limitations such as would warrant evaluations in excess of 20 percent prior to January 25, 2021 and 30 percent thereafter. While the Board is required to consider the effect of the Veteran’s pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the Veteran is already being adequately compensated for pain and the resulting functional loss. Therefore, ratings in excess of those assigned are not warranted under the schedular criteria. Further, the Board has considered whether the Veteran is entitled to an increased disability rating under DC 5243 [intervertebral disc syndrome]. Crucially, the competent evidence of record does not demonstrate that the Veteran has experienced any incapacitating episodes, as defined in Note 1 of DC. There is no evidence of record demonstrating that, at any time during the appeal period, a physician prescribed bed rest during such episodes to justify a higher rating under DC 5243. See the VA examination reports dated in February 2013 and January 2021. Thus, rating the Veteran under the formula for evaluating intervertebral disc syndrome based on incapacitating episodes would not avail him of increased disability ratings for his service connected cervical spine disability. Rather, the Veteran has reported a progressive worsening of neck symptoms and has described functional impairment due to pain and stiffness. Accordingly, the probative evidence of record does not support a finding that ratings in excess of 20 percent prior to January 25, 2021 or 30 percent thereafter are warranted for the Veteran’s service-connected DDD of the cervical spine. The preponderance of the evidence is against the Veteran’s claim for higher ratings. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. 2. Entitlement to a disability rating in excess of 20 percent for service-connected DDD of the lumbar spine. The record shows that the Veteran was service connected for DDD of the lumbar spine in an August 2008 rating decision; a 20 percent rating was assigned from May 4, 2008. An April 2016 rating decision denied an increased rating for service-connected lumbar spine disability. The Veteran disagreed with the denial and this appeal follows. In a June 2016 rating decision, the RO assigned a temporary total evaluation from October 6, 2015 to December 1, 2015 for the service-connected lumbar spine disability based upon a surgical treatment necessitating a period of convalescence. The Board will therefore consider the increased rating claim excluding the assigned temporary total period. For the reasons set forth below, the Board finds that, at no time during the appeal period, have the criteria for higher ratings for the service-connected DDD of the lumbar spine been met or approximated. The Veteran was afforded a VA examination in November 2012 at which time the examiner confirmed a diagnosis of lumbar DDD status-post discectomies L4, L5, S1 with left lower extremity radiculopathy. The examiner indicated that the Veteran’s functional limitation was mild. The examiner stated, “[t]he Veteran is capable of sedentary to light duty employment, based on his service-connected conditions alone, if he so chooses.” The examiner reported that the Veteran’s lumbar spine disability does not prevent him from securing or following a substantially gainful occupation. The examiner noted that the Veteran reports constant daily low lumbar spine and leg pain/cramping with numbness/tingling. The Veteran indicated that his pain is worse with activity, bending, lifting, and twisting. He endorsed flare-ups of lumbar spine symptomatology. Range of motion testing revealed forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. There was no additional limitation of motion on repetitive use testing. The examiner indicated that the Veteran had less movement than normal of the lumbar spine. There was localized tenderness at the midline lower lumbar region. The Veteran did not describe guarding or muscles spasms. Muscle strength was reduced to 4/5 with right hip flexion, right knee extension, right ankle dorsiflexion, and great toe extension. However, there was no evidence of muscle atrophy. Deep tendon reflexes were 1+ (hypoactive) throughout the lower extremities. Sensory examination was decreased in the left lower leg/ankle and left foot/toes. Straight leg raise testing was negative, bilaterally. The examiner indicated that the Veteran had mild constant pain in the left lower extremity, as well as mild paresthesias/dysesthesias, and mild numbness. The examiner determined that there was involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic). The examined diagnosed the Veteran with mild left lower extremity radiculopathy. The examiner noted that the Veteran did not experience any incapacitating episodes due to his lumbar spine disability over the past twelve months. The Veteran endorsed regular use of a cane. The Veteran’s lumbar spine disability does impact his ability to work. The examiner explained that the Veteran “is not able to work as [a] heavy equipment mechanic due to constant lumbar pain and left leg pain and numbness. He cannot bend, lift, or twist. He can carry a carton of milk from store to truck, [but] he is limited.” Private treatment records dated in December 2013 indicated that the Veteran’s back pain had worsened over the last three months. VA treatment records dated in April 2015 noted the Veteran’s report of worsening back pain. The Veteran was afforded a VA examination in April 2016 at which time the examiner confirmed diagnoses of DD of the lumbar spine, HNP at L4-L5, and compression fracture at L1. The Veteran reported chronic left lower extremity numbness and chronic low back pain. He denied flare-ups of lumbar spine symptomatology. He described the following functional loss: “[l]imited in ability to bend, flex, squat or knee, walk any distance or stand or sit for any more than 15 minutes.” Range of motion testing revealed forward flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. Pain was noted on examination, which causes functional. There was pain with weight-bearing. The examiner noted mild tenderness to palpation over the Veteran’s surgical scar. Repetitive use testing was not completed because, although the Veteran tolerated two attempts at each range of motion, he did not complete a third attempt due to pain. The examiner reported that pain significantly limits the Veteran’s functional ability with repeated use over a period of time. The Veteran reported “walking [and] sitting for more than 15 minutes provokes sharp increases in back pain and radicular [pain] left lower extremity.” The Veteran does have muscles spasms, localized tenderness, and guarding that does not result in abnormal gait or abnormal spinal contour. Muscle strength was 4/5 at left hip flexion, knee extension, and great toe extension. There was no evidence of muscle atrophy. Deep tendon reflexes were 1+ (hypoactive). Sensory examination was decreased at the left thigh/knee and absent at the left lower leg/ankle and foot/toes. The Veteran was unable to perform straight leg raise testing. The Veteran reported moderate constant pain the left lower extremity, as well as mild intermittent pain and moderate numbness. The examiner indicated that there was moderate involvement of the left L4/L5/S1/S2/S3 (sciatic) nerve roots. There was no ankylosis or evidence of IVDS. The Veteran reported the constant use of a cane. The examiner reported that the Veteran’s lumbar spine disability does impact his ability to work. Specifically, the Veteran has been unable to work since his 2009 injury and medical board in 2010. At the December 2018 Board hearing, the Veteran testified that he experiences left leg numbness and muscle atrophy. See the Board hearing transcript, pgs. 8-9. He additionally reported low back stiffness. Id. at pg. 11. Pursuant to the April 2019 Board Remand, the Veteran was afforded a VA examination in November 2019 at which time the examiner confirmed continuing diagnoses of IVDS of the lumbar spine, as well as degenerative arthritis and left lumbar radiculopathy. The Veteran reported average daily low back pain at 6-7/10. He endorsed numbness, loss of sensation, left side weakness, and atrophy. The Veteran reported flare-ups of low back symptomatology manifested by increased pain to 9/10. When experiencing flare-ups, the Veteran uses ice and lies on the floor for up to two days. The examiner reported that the Veteran avoids lifting, carrying, extending weight-bearing on the left leg, and extended sitting. Range of motion testing revealed forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Pain was noted in forward flexion, which causes functional loss. There was no localized tenderness or pain on palpation. There was also no additional limitation of motion on repetitive use testing. The examiner indicated that passive range of motion testing was not medically appropriate for this Veteran. The examiner reported that pain, weakness, fatigability, or incoordination do not significantly limit the Veteran’s functional ability with repeated use over a period of time. However, pain and lack of endurance due significantly limit functional ability during flare-ups. The examiner estimated that during flare-ups, the Veteran’s range of motion is additionally limited to the following range of motion measurements: forward flexion to 35 degrees, extension to zero degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. With respect to flare-ups, the examiner opined that they “do not cause lingering or long-lasting functional effects. Flare-ups and/or repetitive use do not likely result in additional functional limitations because the flare-ups subside within a short period of time after cessation of the offending activity or taking medications or using other modalities to alleviate symptoms.” The examiner noted, “[s]ymptoms may increase during flares, but functional status remains the same.” The November 2019 VA examiner reported that the Veteran did not exhibit guarding or muscle spasm. Muscle strength was reduced to 2/5 with left ankle plantar flexion and dorsiflexion, as well as left great toe extension. There was evidence of muscle atrophy; specifically, the left calf has a circumference of 35 cm. and the right calf has a circumference of 39 cm. Deep tendon reflexes were 1+ (hypoactive) at the right and left ankles. Sensory examination was decreased at the left thigh/knee and lower leg/ankle, as well as the right and left foot/toes. The Veteran was unable to perform straight leg raise testing. The Veteran reported severe intermittent pain in the left lower extremity, as well as severe paresthesias/dysesthesias and numbness. The examiner reported that there was involvement of the left L4/L5/S1/S2/S3 (sciatic) nerve roots. There was no evidence of ankylosis. Although there was IVDS of the lumbar spine, the examiner reported that the Veteran did not experience incapacitating episodes requiring bed rest prescribed by a physician within the prior twelve months. The examiner indicated that the Veteran’s lumbar spine disability does impact his ability to work. The examiner explained that the Veteran’s lumbar spine disability “prevents physical labor. It would not prevent clerking, teaching, keyboarding, driving, or light tasks.” Applying the facts in this case to the criteria set forth above, the Board finds that a disability rating in excess of 20 percent is not warranted at any time during the appeal period. There is no evidence of symptoms which produce or more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine. Moreover, VA and private treatment records do not show treatment for lumbar spine symptoms beyond complaints of chronic back pain. The Board additionally notes that, as indicated above, Note 1 of the General Rating Formula for Disease and Injuries of the Spine instructs to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. To this end, as will be detailed below, the Veteran is in receipt of a separate ratings for radiculopathy of the left lower extremity. See, e.g., the rating decision dated February 2021. He has not asserted, nor does the record indicate, that he suffers from any additional neurological impairment due to his service-connected DDD of the lumbar spine. The Board notes that the Veteran has reported significant pain including flare-ups as a result of his lumbar spine disability. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. 204-07. These symptoms were considered by the assigned 20 percent rating. Critically, as detailed above, there is no evidence to corroborate additional functional limitations such as would warrant an evaluation in excess of 20 percent. While the Board is required to consider the effect of the Veteran’s pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon, supra. In this case, the Veteran is already being adequately compensated for pain and the resulting functional loss. Therefore, a rating in excess of the assigned rating is not warranted under the schedular criteria. The Board has additionally considered whether the Veteran is entitled to an increased disability rating under DC 5243 [intervertebral disc syndrome]. Crucially, the competent evidence of record does not demonstrate that the Veteran has experienced any incapacitating episodes, as defined in Note 1 of DC. There is no evidence of record demonstrating that, at any time during the appeal period, a physician prescribed bed rest during such episodes to justify a higher rating under DC 5243. See the VA examination report dated in November 2019. Thus, rating the Veteran under the formula for evaluating intervertebral disc syndrome based on incapacitating episodes would not avail him of increased disability ratings for his service connected lumbar spine disability. Rather, the Veteran has reported a progressive worsening of back symptoms and has described functional impairment due to pain and stiffness. Accordingly, the probative evidence of record does not support a finding that a rating in excess of 20 percent is warranted for the Veteran’s service-connected DDD of the lumbar spine. The preponderance of the evidence is against the Veteran’s claim for an increased rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. 3. Entitlement to a TDIU. Total disability will be considered to exist 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. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this matter, the Veteran has asserted that he is unable to maintain gainful employment due to his service-connected disabilities. See the Veteran’s TDIU claim April 2021. The Veteran is service-connected for radiculopathy of the left lower extremity at 20 percent from June 1, 2010 and 40 percent thereafter; DDD of the cervical spine at 20 percent from May 4, 2008 and 30 percent thereafter; DDD of the lumbar spine at 20 percent from May 4, 2008; radiculopathy of the left upper extremity at 20 percent from November 14, 2019; radiculopathy of the right upper extremity at 10 percent from November 14, 2019; small pulmonary nodule at zero percent; gastroesophageal reflux disease (GERD) with hiatal hernia at zero percent; benign prostatic hypertrophy at zero percent; and surgical scar of the lumbar spine at zero percent. Accordingly, the Veteran’s combined rating prior to November 14, 2019 was 50 percent; thus, he did not meet the minimum threshold requirements for consideration of schedular TDIU under 38 C.F.R. § 4.16(a). However, from November 14, 2019, the Veteran’s combined rating was 80 percent and then 90 percent from January 25, 2021. The Veteran therefore met the schedular criteria for TDIU from November 14, 2019. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Therefore, in accordance with 38 C.F.R. § 4.16(b), the Board will consider whether the Veteran’s claim for TDIU should be referred to the Director of the Compensation Service for extraschedular consideration prior to November 14, 2019. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted). For the period dating from November 14, 2019, the Board will consider whether the Veteran’s service-connected disabilities precluded gainful employment for which his education and occupational experience would otherwise qualify him. The Board finds that the evidence of record does not substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities alone prior to November 14, 2019. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the initial extraschedular referral decision under § 4.16(b) addresses whether there’s sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities). The Veteran asserted a claim of entitlement to a TDIU in April 2012 at which time he reported that he last worked full-time in January 2012. He indicated that he had worked as an automobile mechanic from November 2011 to January 2012. Prior to that time, he worked as an aviator equipment mechanic for the State of Alabama National Guard from January 1986 to August 2009. See the VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) dated April 2012. The Veteran reported that he is unable to maintain gainful employment due to his service-connected DDD of the cervical and lumbar spine. Id. Records from the Social Security Administration (SSA) show that the Veteran was granted SSA disability benefits effective from December 30, 2011 based upon the collective impact of multiple disabilities including major depressive disorder (MDD), dysphagia, low back pain, neck disability, carpal tunnel syndrome, and benign prostatic hypertrophy. The evidence of record includes a memorandum to the Department of the Army dated November 2011 in which the Veteran requested 28 hours of advanced sick leave. In his memorandum, he reported that, at the beginning of the calendar year, he had a total of 288 combined sick and annual leave hours. He stated, “after a long series of absences due to illness, injury, and hospitalization, my leave hours are now totally depleted.” In a March 2012 statement, the Veteran’s spouse reported that the Veteran’s mental health declined following a car accident in 2011. She described how the Veteran’s depression has negatively impacted his ability to function in daily life including affecting his relationships and his ability to drive. In an April 2012 statement, the Veteran’s former supervisor, Mr. E.L., reported that he became the Veteran’s immediate supervisor in April 2009. He indicated that the Veteran initially excelled in his job; however, in early 2011 after a car accident, the Veteran’s job performance and conduct began to deteriorate. Mr. E.L. reported that the Veteran “seemed to struggle with depression, which harmed his ability to carry out his daily functions.” Mr. E.L. explained, “[b]ased on this pattern of poor job performance, which included excessive absenteeism, I was compelled to give [the Veteran] a rather stern written reprimand.” As described above, the November 2012 VA examiner noted the Veteran’s functional impairment due to his lumbar spine disability including his report of pain with activity, bending, lifting, and twisting. The examiner indicated that the Veteran’s lumbar spine disability does impact his ability to work. The examiner explained that the Veteran “is not able to work as [a] heavy equipment mechanic due to constant lumbar pain and left leg pain and numbness. He cannot bend, lift, or twist. He can carry a carton of milk from store to truck, [but] he is limited.” The VA examiner nevertheless reported that the Veteran “is capable of sedentary to light duty employment, based on his service-connected conditions alone, if he so chooses.” The examiner concluded that the Veteran’s lumbar spine disability “does not prevent him from securing or following a substantially gainful occupation.” The February 2013 VA examiner documented the severity of the Veteran’s cervical spine disability including radiculopathy of his right hand. The examiner reported that the Veteran’s disabilities result in less movement than normal and pain on movement. The examiner concluded that the Veteran’s cervical spine disability does not impact his ability to work. The April 2016 VA examiner described the severity of the Veteran’s lumbar spine disability and noted the Veteran’s report of functional loss including limited ability to bend, flex, squat, knee, walk any distance, or sit or stand for any more than 15 minutes. The examiner noted that walking or sitting for more than 15 minutes provokes sharp increases in back and radicular pain in the left lower extremity. The VA examiner indicated that the Veteran’s lumbar spine disability does impact his ability to work. The examiner stated that the Veteran has been unable to work since a 2009 injury and medical board in 2010. At the December 2018 Board hearing, the Veteran reported that he has an 11th grade education and earned his G.E.D. See the hearing transcript, pg. 12. He reported that he is unable to perform any jobs due to his service-connected neck, back, and radiculopathy disabilities. Id. at pgs. 15-16. The Veteran was afforded a VA examination of the peripheral nerves in November 2019 at which time the examiner diagnosed radiculopathy of the right and left upper extremities. The examiner indicated that the Veteran had mild incomplete paralysis of the right ulnar nerve and moderate incomplete paralysis of the left ulnar nerve. The examiner reported that the Veteran’s disabilities do impact his ability to work; namely, “left side for lifting, carrying, [and] repetitive tasks.” The Veteran also had a VA examination as to his lumbar spine in November 2019 at which time the examiner documented functional loss including the Veteran’s avoidance of lifting, carrying, extending weight-bearing on the left leg, and extending sitting. The Veteran reported flare-ups with increased pain to 9/10. The examiner also diagnosed the Veteran with radiculopathy of the left lower extremity. The examiner reported that the Veteran’s lumbar spine and radiculopathy disabilities do impact his ability to work; specifically, “[c]ondition prevents physical labor. It would not prevent clerking, teaching, keyboarding, driving, or light tasks.” A January 2020 VA examiner addressed the severity of the Veteran’s service-connected neck disability. The examiner reported that the Veteran experiences limitation of motion and neck pain. The Veteran reported the following functional impairment: “I can’t play with my grandchildren. I can’t look up or down. I can’t look side to side.” The VA examiner indicated that the Veteran’s neck disability does impact the Veteran’s ability to work. The examiner noted that the Veteran is a retired heavy equipment mechanic and, prior to his retirement, he lost 0 to 1 week of work in the prior 12 months due to his neck disability. Significantly, the clinical evidence throughout the appeal period does not indicate that the Veteran was unable to obtain and maintain gainful employment due solely to his service-connected disabilities at any time. First, there is no indication, nor has the Veteran specifically contended, that his service-connected pulmonary nodule, GERD with hiatal hernia, benign prostatic hypertrophy, or surgical scar disabilities interfere with his ability to participate in occupational activities. There is no medical evidence to support a finding that these disabilities interfered with the Veteran’s occupational abilities. In accordance with the Court’s holding in Ray, the Board has considered the economic and noneconomic components of the Veteran’s TDIU claim. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). While the Board acknowledges the functional impairment resulting from the Veteran’s cervical spine, lumbar spine, and radiculopathy disabilities, the evidence does not demonstrate that said service-connected disabilities resulted in the Veteran’s inability to secure and follow gainful employment. The evidence documents the Veteran’s reported functional impairment including difficulty walking and sitting for sustained periods of time; however, the evidence does not indicate that the Veteran was unable to obtain and maintain gainful employment due solely to his service-connected disabilities. The Board recognizes that the April 2016 VA examiner appeared to indicate that the Veteran’s lumbar spine disability has rendered him unable to work since 2010. However, this finding is inconsistent with the other evidence of record including VA examinations dated in November 2012, February 2013, November 2019, and January 2021, which demonstrates that the Veteran’s service-connected cervical and lumbar spine disabilities to include radiculopathy do not render him unable to secure or follow a gainful occupation at any time during the appeal period. Significantly, the evidence of record does not reflect that the Veteran’s service-connected disabilities manifested symptoms of such severity as to impact his employability beyond what is contemplated by the assigned schedular ratings prior to November 14, 2019. The severity of the Veteran’s service-connected symptomatology was specifically contemplated by assigned evaluations. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue 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”). Critically, for the above reasons, the evidence of record does not support a conclusion that his service-connected disabilities alone made him unemployable; thus, there is no basis to refer the Veteran’s case for consideration of an extraschedular evaluation prior to November 14, 2019. Id. at 1354 (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The Board recognizes the assertion of the Veteran’s attorney that the Veteran is capable only of marginal employment. See, e.g., the written argument of the Veteran’s attorney dated February 2021. As relevant, marginal employment is not considered substantially gainful employment, and a Veteran can establish marginal employment either by demonstrating an earned annual income less than the poverty threshold established by the U.S. Census Bureau or on a facts-found basis. 38 C.F.R. § 4.16; Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Marginal employment on a facts-found basis includes, but is not limited to, employment in a protected environment when earned annual income exceeds the poverty threshold. Id. However, in this case, the Veteran is not currently employed and has offered no evidence that he is only capable of marginal employment aside from the written arguments of his attorney. The Board thus finds that the argument of the Veteran’s attorney as to marginal employment are without merit. As detailed above, the probative evidence of record, shows that from November 14, 2019, the Veteran’s service-connected disabilities did not prevent him from following substantially gainful employment. Although his service-connected cervical and lumbar spine disabilities with radiculopathy certainly caused interference to some extent with his employability, particularly his ability to engage in occupational activities which require physical activities such as bending, lifting, and prolonged walking and standing, such interference is contemplated in the schedular ratings currently assigned to said disabilities, and the evidence of record does not demonstrate that his service-connected disabilities alone result in unemployability. While not discounting the significant effect that the service-connected disabilities have on the Veteran’s employability, the Board finds that such are adequately compensated at the currently-assigned levels. Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) & Van Hoose, supra. As set forth above, the clinical record reflects that although the Veteran is unable to engage in employment activities requiring physical labor such as bending, lifting, carrying, and prolonged walking, he is able to engage in less physical demanding employment activities such as those which would be required of a clerk, teacher, or an occupation requiring keyboarding, driving, or light tasks. In short, the Board finds insufficient evidence to substantiate a reasonable possibility that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities prior to November 14, 2019; thus, referral for extraschedular consideration for that period is not warranted. The Board further finds that the evidence of record demonstrates the Veteran’s service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation from November 14, 2019. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s TDIU claim. The benefit-of-the-doubt rule does not apply, and the issue of entitlement to a TDIU is denied. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.