Citation Nr: 21023404 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-15 296 DATE: April 20, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to April 25, 2014 and in excess of 20 percent thereafter for radiculopathy, left lower extremity associated with lumbo paravertebral fibromyositis with lumbar degenerative disc disease is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 26, 2016 is denied. FINDINGS OF FACT 1. Prior to April 25, 2014, the Veteran’s radiculopathy of the left lower extremity involving the sciatic nerve was manifested by no more than mild incomplete paralysis; from April 25, 2014 onward, radiculopathy of the left lower extremity manifested by no more than moderate incomplete paralysis. 2. The Veteran’s service-connected disabilities did not prevent him from securing and following substantially gainful employment consistent with his level of education, prior work history, and training prior to April 26, 2016. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to April 25, 2014 and in excess of 20 percent thereafter for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 2. The criteria for a TDIU prior to April 26, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to February 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2009 and November 2010 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. In May 2019, the Board remanded the issues on appeal for further development; there was substantial compliance with the remand directives. 1. Entitlement to a rating in excess of 10 percent prior to April 25, 2014 and in excess of 20 percent thereafter for left lower extremity radiculopathy. The Veteran contends that he is entitled to higher ratings for his left lower extremity radiculopathy. A claim for an increased rating was received on May 22, 2009. Therefore, the relevant rating period is from May 22, 2008, one year prior to receipt of the claim, through the present. 38 C.F.R. § 3.400(o)(2). In the November 2010 rating decision on appeal, the RO continued a 10 percent rating in effect for the Veteran’s left lower extremity radiculopathy involving the sciatic nerve, pursuant to38 C.F.R. § 4.124a, DC 8599-8520. The Veteran appealed from this rating decision. In a May 2016 rating decision, the RO increased the disability rating to 20 percent, effective from April 26, 2016. The diagnostic code was changed to DC 8520. Later, in an October 2020 rating decision, the RO assigned an earlier effective date of April 25, 2014 for the 20 percent evaluation. The Board notes that in the October 2020 decision, the RO also granted service connection for radiculopathy of the left lower extremity (femoral) nerve and assigned an initial evaluation of 20 percent, effective April 25, 2014. The propriety of this initial evaluation is not before the Board at this time. Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. Where there is a question as to which of the two disability evaluations is applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board must also fully consider the lay assertions of record. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran’s service-connected left lower extremity radiculopathy is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 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. 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). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. 38 C.F.R. § 4.123. In May 2019, the Board remanded the appeal for a new VA examination and to supplement the claims file with missing medical records that were referenced in the November 2010 rating decision and the March 2014 statement of the case but not associated with the claims file: including both VA examination reports and private medical records. The RO was unable to obtain the missing VA examination reports, from December 2009 and July 2010. The RO asked the Veteran to resubmit the missing private medical records in a November 2020 letter, but received no response. As the RO was unable to obtain the missing medical records, the Board will incorporate the findings provided in the November 2010 rating decision and March 2014 statement of the case as pertains to the missing medical records. Per the November 2010 rating decision and March 2014 statement of the case, the RO reported the following regarding the VA examinations. VA examination results from December 2009 were received and reviewed. On physical examination of the left lower extremity, it was noted that knee extension was measured as 3 of 5 and ankle plantar flexion, dorsiflexion and great toe extension was measured as at least 4 of 5. Additionally, decreased sensation and normal deep tendon reflexes were noted. The examiner provided a diagnosis of left lower radiculopathy by history. VA examination results from July 2010 were received and reviewed. On physical sensory examination of the left lower extremity, it was noted that there was decreased pain or pinprick and decreased light touch in the stocking distribution below the knees. The reflex exam was noted as normal. Left knee extension and flexion were measured at 4 of 5. Motor strength of the left hip and ankle were normal. The examiner stated that there was glove and stocking peripheral neuropathy and bilateral meralgia. In regard to the private treatment records, the RO reported the following: Private treatment reports from a spine & pain center show continued treatment for your lumbar spine with diagnoses to include lumbar radiculopathy. Private treatment reports from Dr. M.B. show an assessment of lumbosacral spondylosis without myelopathy. Private treatment reports from Dr. E.M. were reviewed, but do not provide evidence which indicate a higher evaluation is warranted. Social Security Administration (SSA) records include records from your private physicians and a VA Medical Center but do not provide evidence which indicate a higher evaluation is warranted. Turning now to the evidence in the file [all in regards to the left lower extremity unless otherwise noted], at a February 2013 VA examination there was no muscle atrophy, and muscle strength was normal. Reflexes were normal in the knee and ankle. Light touch testing of the left lower extremity was normal. There was moderate constant pain, intermittent pain, paresthesias, and numbness. The VA examiner found no objective evidence of radiculopathy of the left lower extremity. Based on the private treatment records and VA examination reports, the Board finds that prior to April 25, 2014, the level of impairment demonstrated by the Veteran’s radiculopathy of the left lower extremity was most analogous to mild, incomplete paralysis of the sciatic nerve. Although the Veteran asserted in the May 2009 statement in support of his claim that he was entitled to an increased evaluation due to his need for a cane for the numbness in his left leg, and reported moderate chronic pain in his back and down his legs in a December 2010 VA treatment record, the symptoms observed at the February 2013 VA examination were so mild that the examiner found no objective evidence of radiculopathy of the left lower extremity during the examination. Additionally, the December 2009 and July 2010 VA examiners did not find evidence of more than mild symptoms and found radiculopathy only by history, not by examination. SSA records provide no relevant evidence for rating purposes. The Board notes that the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the February 2013 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is also shown to have been based on a review of the record and a personal examination of the Veteran, accompanied by a sufficient explanation. The opinion is competent and probative. Therefore, a higher rating of 20 percent is not warranted as there is no competent evidence of greater impairment. The Veteran’s left lower extremity sciatic nerve radiculopathy is evaluated at 20 percent, for moderate incomplete paralysis, beginning April 25, 2014. The evidence does not support the assignment of a higher rating for this period. An April 25, 2014 private examination from Dr. A.A. [board certified in pain management and anesthesiology] utilizing the VA back (thoracolumbar spine) conditions disability benefits questionnaire (DBQ), noted that the Veteran’s low back pain causes severe sciatica. There was no muscle atrophy and muscle strength was below normal from the hip flexion to the ankle dorsiflexion, particularly at the knee extension, with normal great toe extension. Reflexes were hypoactive in the left ankle and absent in the left knee. Light touch testing was decreased from the upper anterior thigh to the toes. There was moderate intermittent pain and severe constant pain; paresthesias; and numbness. Dr. A.A. noted severe left lower extremity radiculopathy of the sciatic nerve. At an August 2014 VA examination the Veteran reported radiating pain from the back to the lower extremities. The Veteran’s gait was noted as normal. There was no muscle atrophy, and muscle strength was normal. Reflexes were normal in both the knee and ankle. Light touch sensation testing was decreased from the upper anterior thigh to the toes. Despite the Veteran’s reports of symptoms of left lower extremity radiculopathy, the examiner found no objective evidence of radiculopathy, noting the motor and reflex exams were within normal limits. Additionally, the examiner found the examination entirely unreliable due to inconsistent/equivocal responses and poor effort from the Veteran, and she explained the basis for this conclusion in detail as reflected in the examination report. At an April 2016 VA examination the Veteran reported pain at 10 out of 10 radiating down the back of both legs which he treated with medication. There was no muscle atrophy, and muscle strength was normal, except for mild weakness of the left knee and left hip flexion. Reflexes were absent in both the knee and ankle. Light touch testing was decreased at the upper anterior thigh and the foot/toes, and normal at the thigh/knee and lower leg/ankle. There was moderate intermittent pain and mild numbness. The VA examiner noted moderate severity left lower extremity radiculopathy of the sciatic nerve. An October 2016 private examination report from Dr. A.A., utilizing the VA back (thoracolumbar spine) conditions DBQ, was an exact copy of the same manually filled out DBQ from Dr. A.A. dated April 25, 2014, with a new date inserted, so it provides no new evidence and does not merit reconsideration. At a February 2017 VA examination the Veteran reported pain in his back and shooting pain down his legs. There was no muscle atrophy, and muscle strength was normal, except for mild weakness of the left knee extension and left hip flexion. Reflexes were normal in both the knee and ankle. Light touch testing was decreased from the upper anterior thigh to the toes. There was moderate constant pain, paresthesias and numbness. The VA examiner noted moderate severity left lower extremity radiculopathy of the sciatic nerve. An April 2017 private treatment record from Dr. A.A. noted symptoms of numbness, tingling, and weakness of the bilateral lower extremities. The Veteran was not assessed with radiculopathy. The Veteran also received lumbar epidural steroid injections and other treatment from Dr. A.A. on a regular basis from as early as December 2010 to at least November 2017, the most recent record on file. The Veteran is noted as having a history of low back pain radiating down to lower extremities associated with numbness and tingling correlating with lumbar radiculopathy that has failed conservative therapy. At his December 2017 hearing, the Veteran and his representative argued that the Veteran’s symptoms of pain and numbness in his left leg had increased in severity warranting an increased rating. The Veteran described his symptoms as pain in the back of his leg, to the extent that he cannot move at times and sometimes causing the leg to go numb. He reported that the numbness starts in the upper thigh and works down to where he does not feel the rest of his leg, which can lead to falls. He reported flare-ups approximately four times per week leading to falls about every two weeks and the need for treatment. He described the pain as so severe during flare-ups that he wants to throw up and that he gets headaches from it. He stated that the pain comes and goes but is also a constant thing that requires taking a great deal of medication that often does not help. The Veteran reported the above mentioned back injections as treatment, as well as prescription pain medication and home remedies. At a June 2019 VA back examination the Veteran reported getting pain down the back of both of his legs which can be burning in nature. He reported the severity of his right lower extremity was significantly worse than the left. Objectively, there was no muscle atrophy, and muscle strength was normal. Reflexes were absent in both the knee and ankle. Light touch testing was normal. The VA examiner found that the left lower extremity was not impacted by radiculopathy. At a December 2019 VA peripheral nerves examination the Veteran reported intermittent pain from his lower back that radiates down to both legs, with a 7 out of 10 severity of pain in the legs when it occurs. He also reported constant numbness (with intermittent tingling on the left side) in his foot and lower leg. He reported that these symptoms worsened gradually over time but have not changed in the last four years. The Veteran reported taking medications for his pain. Upon examination, there was no muscle atrophy, and muscle strength was normal. Reflexes were hypoactive in left knee. Light touch testing was decreased in the lower leg/ankle and foot/toes, and normal in the upper anterior thigh and thigh/knee. There was severe intermittent pain and mild paresthesias and numbness. The Veteran’s gait was noted as abnormal/antalgic due to back pain and pain in the back of both legs. No trophic changes were present. The examiner indicated the clinical presentation was compatible with a dysfunction in the territory of L5 nerve root (decreased sensation to light touch over the anterolateral aspects of distal parts of the lower leg, dorsal aspects of mid portions of the foot, and dorsal aspects of middle 3 toes) corresponding to the musculocutaneous (superficial peroneal) nerve. The examiner characterized this as mild incomplete paralysis of musculocutaneous nerve of the left lower extremity. Based on this examination report, in October 2020 the RO granted service connection and a separate, compensable rating for radiculopathy of the left lower extremity (femoral) is granted with an evaluation of 20 percent effective April 25, 2014. As previously stated, the propriety of the initial rating for this musculocutaneous nerve involvement is not before the Board. Based on the Veteran’s lay statements, hearing testimony, VA examination reports, and the private medical records, the Board finds that as of the Veteran’s April 25, 2014 private DBQ examination by Dr. A.A., the level of impairment demonstrated in his radiculopathy of the left lower extremity is consistent with mild to moderate, incomplete paralysis - which is contemplated by his current 20 percent rating for moderate incomplete paralysis for this period. VA treatment records and SSA records provide no relevant evidence for rating purposes. Despite the Veteran’s lay statements indicating that his symptoms warrant an increased rating, the objective findings generally reflect that his symptoms have fluctuated but have not increased on balance to a degree warranting a higher rating. The August 2014 and June 2019 VA examiners did not find evidence of radiculopathy. The April 2016 and February 2017 VA examiners assessed the Veteran’s level of impairment as ‘moderate’ in severity, while the December 2019 VA examiner assessed the Veteran’s level of impairment as ‘mild’ in severity. These findings were provided by VA medical professionals who possess the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinions are shown to have been based on a review of the record and a personal examination of the Veteran, accompanied by a sufficient explanation. The opinions are competent, probative, and carry significant weight. Furthermore, there is no competing medical opinion of record. The disability in question is primarily manifested by symptoms of sensory disturbance, loss of reflexes, and pain. The probative evidence of record is against a finding that the disability is manifest by symptoms that would demonstrate more severe impairment, such as impairment of motor functions, trophic changes, muscle atrophy, foot drop, or complete paralysis. Accordingly, a higher 40 percent rating is not warranted as there is no competent evidence of greater impairment. For conditions that are wholly sensory, as here, the maximum disability rating is the moderate degree, which for DC 8520 is accompanied by the current 20 percent rating. A higher rating is not warranted. See 38 C.F.R. § 4.124a; see Miller, 28 Vet. App. 376. Additionally, a separate or higher rating under a different diagnostic code is not warranted. In conclusion, the preponderance of the evidence does not support a rating in excess of 10 percent prior to April 25, 2014; or a rating in excess of 20 percent thereafter; thus, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. 2. Entitlement to a TDIU prior to April 26, 2016. The Veteran contends his service-connected disabilities precluded substantially gainful employment prior to April 26, 2016. In an October 2020 rating decision, the RO granted entitlement to a TDIU, effective April 26, 2016. Nevertheless, a grant of TDIU during a portion of the period on appeal is not considered a full grant of an implied claim or a requested prayer of relief. Harper v. Wilkie, 30 Vet. App. 356 (2018). Therefore, the issue of entitlement to TDIU prior to April 26, 2016 remains pending. The Veteran’s formal application for TDIU was received in June 26, 2008, therefore, the period on appeal is from June 26, 2008 until April 25, 2016. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component requires a determination as to a veteran’s ability to secure and follow such employment. Id. Attention should be given to: (1) the veteran’s occupational history, education, skills, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. In reaching such a determination, 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). Factors such as age or impairment by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. During the appeal period in question, the veteran was service-connected for the following: degenerative arthritis of the spine (previously characterized as lumbo paravertebral fibromyositis with lumbar degenerative disc disease) (rated 40 percent from September 4, 2007); depressive disorder not otherwise specified, associated with lumbo paravertebral fibromyositis with lumbar degenerative disc disease (rated 30 percent from August 13, 2012); radiculopathy, left lower extremity (sciatic nerve) associated with lumbo paravertebral fibromyositis with lumbar degenerative disc disease (rated 20 percent from April 25, 2014); and radiculopathy of the left lower extremity (femoral) associated with lumbo paravertebral fibromyositis with lumbar degenerative disc disease (rated 20 percent from April 25, 2014). The relevant combined disability ratings were 60 percent from August 13, 2012; and 70 percent from April 25, 2014. The Veteran first met the schedular requirement for a TDIU as of August 13, 2012. As of this date, the Veteran was service-connected for multiple disabilities resulting from a common etiology. Thus, the combined 60 percent rating for the disabilities meets the schedular requirement under 38 C.F.R. § 4.16(a). Prior to August 13, 2012, the Veteran did not meet the schedular requirement for a TDIU. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned on an extraschedular basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration. Id. The question for the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities alone during the period on appeal. Turning to the evidence of record, in a June 2008 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), the Veteran listed the disability that prevents him from working as his back injury. With respect to the economic component, on his June 2008 VA Form 21-8940 the Veteran indicated that he last worked full-time in December 2004 as a senior immigration inspector. According to testimony from his December 2017 hearing, he resigned at that point due to the added weight of new security equipment required to be added to the uniform, which he claimed he could not handle due to his back problems, as well as new requirements for field work which the Veteran could no longer handle. Prior to that point he was able to do more administrative office work as opposed to field work, per his hearing testimony. In a March 2009 VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) the Veteran’s immigration enforcement supervisor reported that the Veteran earned over $ 28,246 in his last 12 months of employment – more than marginal income. The Veteran reported that he has not worked since then, however SSA records show that the Veteran additionally worked part-time as a tax preparer from January to April 2006. Further, a resume from the Veteran’s vocational rehabilitation and employment records, dated October 2007, shows that he also worked in property management, up to 40 hours per week, from November 2006 to the present at the time of the resume. There is no indication when this employment ended. Though the record and the Veteran’s statements are inconclusive as to when he was last employed, the Board will assume, for the sake of argument, that the Veteran has not been employed at an occupation earning more than a marginal income throughout the period on appeal. The Board notes he was able to work and earn more than a marginal income while working in immigration enforcement, and possibly while working as a tax preparer and in property management (the Veteran reported $15,000 per year on his resume), though it is unclear since the Veteran neglected to include this information on his VA Form 21-8940. Therefore, the Board will proceed as if the Veteran meets the economic criteria to be eligible for a TDIU during the period on appeal. SSA records from 2008 show that the disabilities listed by the Veteran on his disability application, which he believed caused him impairment, were his low back disability and associated left lower extremity radiculopathy. A May 2008 private medical examination provided by Dr. L.R., part of the Veteran’s SSA records, indicated that the Veteran was diagnosed with severe venous stasis disease of the lower extremities, morbid obesity, uncontrolled diabetes, uncontrolled hypertension, and worsening of lower extremity pains secondary to lumbar radiculopathy as well as venous stasis disease. The radiculopathy was found to be secondary to a low back injury. The Veteran was found to be disabled by the SSA, as a result of his peripheral venous disease (primary) and obesity (secondary), neither of which are service-connected disabilities. Turing to the non-economic component, the Veteran’s SSA records indicate that his educational background includes a GED and completion of one year of college. His resume also indicates 78 credit hours towards a business administration degree. The SSA records also note that his work history includes over 16 years of employment in federal immigration enforcement, as well as less than a year as a part-time tax preparer. His resume indicates at least 10 months in property management. Additionally, the Veteran’s resume indicates that he is a licensed tax preparer and a Notary Public. At a February 2013 VA mental disorders examination, the examiner opined that the Veteran’s current level of depression would not preclude employment in physical or ‘non-physically intensive’ activity. The examiner noted that the Veteran may have occasional irritability and decreased tolerance for stress in a work environment that is demanding and that clinical experience indicates that veterans with moderate levels of depression experience some reduced productivity in work environments due to low energy and difficulty concentrating. However, the examiner further opined that depressed veterans are able to function adequately in routine tasks that do not require learning of new information, a great deal of social interaction, or time pressure. At a February 2013 VA general medical examination, and VA spine examination, a different VA examiner considered each of the Veteran’s service-connected conditions and opined that his service-connected conditions should not preclude light duty employment, noting that the Veteran reported an inability for prolonged sitting, standing or walking as well as not being able to reach overhead or pick something up off the floor. At an April 25, 2014 private examination, Dr. A.A. opined as to how the Veteran’s service connected back condition limits his ability to work stating that due to the patients inability to walk without frequent falls as well as severe pain, he is a risk in the workplace. At an August 2014 VA spine examination, the VA examiner noted the Veteran’s report that he stopped working as a customs/border protection agent in 2004 because he was unable to do so anymore because of his back. At an April 26, 2016 VA spine examination, the VA examiner opined that the Veteran’s service-connected condition rendered him incapable of doing any meaningful employment, which led to the grant of a TDIU from that date forward. After a review of the evidentiary record, the Board finds that entitlement to TDIU prior to April 26, 2016 is not warranted. Rather the evidence shows the Veteran had physical and mental limitations, but his service-connected disabilities would not have precluded the types of employment for which he has relevant training and experience. The Board acknowledges that the February 2013 VA examiners indicated that the Veteran’s service-connected disabilities would impact his ability to work. It is notable however, that the examiners did not indicate that the Veteran was unable to work at all due to his disabilities. Rather, the examiners (who evaluated him and reviewed his medical history) only indicated that he would be limited to light duty employment with routine tasks that do not require learning of new information, a great deal of social interaction, or time pressure. In addition, at the April 25, 2014 private examination, Dr. A.A. did not indicate that the Veteran was unable to work at all due to his service-connected spine condition. Rather, Dr. A.A only indicated that his disabilities would limit his ability to work due to his inability to walk without frequent falls as well as severe pain. As noted, the Veteran had significant experience in immigration enforcement and experience and licensure as a tax preparer, experience in property management, licensure as a Notary Public, and training in business administration. The Veteran should have been able to use his skills and experience to engage in light duty administrative employment with routine tasks that do not require learning of new information, a great deal of social interaction, or time pressure. Such positions could have allowed for the Veteran to continue to secure and maintain a substantially gainful employment. The Board further considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. at 58. The Veteran has been found to require limitations on his physical activity. However, there is no evidence that his service-connected low back and lower extremity disabilities prevented him from being able to perform all physical tasks, only that they limited prolonged sitting, standing or walking as well as being able to reach overhead or pick something up off the floor. That is, while his service-connected low back and lower extremity radiculopathy disabilities may have limited the types of physical activity he was capable of, he was not prevented from performing any and all physical activities. Administrative work for which he was qualified could have allowed the Veteran to sit or stand when necessary and could have been light duty in nature. Further, while his service-connected low back and lower extremity radiculopathy disabilities did limit his physical ability, his diagnosed nonservice-connected severe venous stasis disease of the lower extremities, morbid obesity, uncontrolled diabetes, and uncontrolled hypertension also impacted his physical ability to work. Indeed, his obesity and venous disease were found by the SSA to cause him to be disabled. Thus, the Veteran’s physical limitations that impacted his ability to work (that is, obtain and maintain substantially gainful employment) are at least partially due to his nonservice-connected severe venous stasis disease of the lower extremities, morbid obesity, uncontrolled diabetes, and uncontrolled hypertension, and not due to his service-connected low back and lower extremity radiculopathy disabilities alone. The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. at 58. The Veteran was found to require limitations due to occasional irritability and decreased tolerance for stress in a demanding work environment. However, there is no evidence that his service-connected depression disorder prevented him from having the mental ability to perform the activities required by relevant employment, only that he might experience some reduced productivity in work environments due to low energy and difficulty concentrating. Indeed, the February 2013 VA mental disorders examiner opined that depressed veterans are able to function adequately in routine tasks that do not require learning of new information, a great deal of social interaction, or time pressure. Administrative work for which he was qualified could have allowed the Veteran to function in such an environment. The evidence of record does not show functional impairment caused by the Veteran’s service-connected disabilities alone resulted in an inability to secure and maintain a substantially gainful occupation prior to April 26, 2016. For this reason, referral for extraschedular TDIU consideration prior to August 13, 2012 is not warranted under 38 C.F.R. § 4.16(b). Entitlement to a TDIU from August 14, 2012 to April 25, 2016 on a schedular basis is also not warranted. 38 C.F.R. § 4.16(a). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Entitlement to a TDIU is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Caban, Associate 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.