Citation Nr: 21025217 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-23 413 DATE: April 27, 2021 ORDER Entitlement to a rating in excess of 40 percent from March 21, 2014 for service-connected lumbar spine degenerative joint disease (DJD), also diagnosed as intervertebral disc syndrome (IVDS), is denied. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is denied. Entitlement to an effective date earlier than January 27, 2014, for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Since March 21, 2014, the evidence of record does not show that the Veteran’s lumbar spine is unfavorably ankylosed. 2. The Veteran’s right lower extremity radiculopathy is productive of neuralgia manifested by moderate incomplete paralysis of the sciatic nerve. 3. The Veteran’s left lower extremity radiculopathy is productive of neuralgia manifested by moderate incomplete paralysis of the sciatic nerve. 4. Prior to January 27, 2014, the evidence of record is against a finding that the Veteran was unable to secure or follow substantially gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. Since March 21, 2014, the criteria for a rating in excess of 40 percent for lumbar spine DJD, also diagnosed as IVDS, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243-5242. 2. The criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8720. 3. The criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8720. 4. The criteria for entitlement to an effective date earlier than January 27, 2014 for the award of a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1962 to March 1965. This matter is before the Board of Veterans’ Appeals (Board) on appeal from February 2013 and February 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in December 2017, June 2018, and January 2021. All requested development has been completed, and the Board may proceed with adjudication. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Id. at 126. 1. Entitlement to a rating in excess of 40 percent from March 21, 2014 for service-connected lumbar spine DJD, also diagnosed as IVDS. The Veteran contends that he is entitled to a higher rating for his service-connected lumbar spine condition. The Board notes that in a January 2021 decision, it denied an initial rating in excess of 20 percent for the disability prior to June 30, 2010, denied an initial rating in excess of 40 percent from June 30, 2010 to January 8, 2013, and granted an increased rating of 40 percent from January 9, 2013 to March 20, 2014. Thus, the only remaining issue is whether the Veteran is entitled to a rating in excess of 40 percent for the time period since March 20, 2014. The Veteran’s lumbar spine condition is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243-5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Whether higher ratings are warranted for the Veteran’s already service-connected bilateral lower extremity radiculopathy is addressed below. Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. The Court of Appeals for Veterans Claims (Court) has recently held that the requirement of ankylosis in the General Rating Formula for Injuries and Disease of the Spine can be met with evidence of the functional equivalent of ankylosis, i.e., functional immobility of the joint, during a flare-up. See Chavis v. McDonough, 2020 U.S. App. Vet. Claims, No. 18-2928 (April 16, 2021). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s lumbar spine condition at any time since March 21, 2014. Simply put, the evidence does not demonstrate that the Veteran’s lumbar spine is ankylosed, which is required for a higher rating of 50 or 100 percent. Indeed, at his March 2014 VA examination, the Veteran denied flare-ups and demonstrated forward flexion to 80 degrees. The examiner specifically noted that there was no ankylosis. In his June 2014 substantive appeal, the Veteran did state that he was unable to bend over due to his back pain, suggesting a potential level of ankylosis. He was therefore scheduled for another VA back conditions examination in September 2014. He reported chronic low back pain that made it hard to bend forward to wash dishes or hold his dog. While his forward flexion was significantly limited to 25 degrees, and stayed the same after repetitive-use testing, the examiner specifically noted that there was no ankylosis. The Veteran did not suggest as much. At subsequent VA back conditions examinations in September 2015, February 2018, and September 2020, the Veteran reported significant low back pain and demonstrated limited range of motion—to include 30 degrees of flexion in September 2015, without reports of flare-ups; 40 degrees of flexion in February 2018 without reports of flare-ups; and 65 degrees of flexion in September 2020, limited to 55 degrees of flexion after a flare-up—but never reported nor demonstrated ankylosis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain during flare-ups and pain during repetitive use over time. See September 2020 VA examination. Pertinently however, even during flares or after repetitive use, the Veteran was able to move his spine, albeit to a limited degree. Neither he nor his attorney asserts to the contrary. As such, a higher rating than the currently assigned 40 percent under the General Rating Formula for spine disabilities is not warranted. In so finding, the Board has considered whether the evidence has shown functional loss consistent with that contemplated by ankylosis. See Chavis, supra. Despite the Veteran’s statement that he sometimes struggles to fully bend over to wash dishes, for example, the evidence, medical or lay, has never shown that the Veteran suffers from functional loss that is the functional equivalent of ankylosis. Indeed, the Veteran has demonstrated forward flexion to, at the very worst, 25 degrees, suggesting a level of movement not akin to ankylosis. At subsequent examinations, he denied flare-ups and most recently in September 2020, it was predicted that the Veteran would have 55 degrees of forward flexion even after a flare-up. Therefore, it is not shown that the Veteran experiences functional immobility of the spine, even during a flare-up. Consideration has also been given to assigning a higher rating under the Formula for IVDS Based on Incapacitating Episodes, given the Veteran’s diagnosis of IVDS. However, the most recent VA examiner indicated that the IVDS has not resulted in any episodes of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months. See September 2020 VA examination report. The two prior VA examination reports did not identify IVDS at all. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent since March 21, 2014 for his lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy. 3. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy. By way of relevant history, a February 2013 rating decision granted service connection for right and left lower extremity radiculopathy and assigned each disability an initial 20 percent rating pursuant to Diagnostic Code 8720. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neuralgia of that group are evaluated under Diagnostic Code 8720. Under these criteria, 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. See 38 C.F.R. §§ 4.123, 4.124. While the terms “mild,” “moderate,” and “severe” are not defined in the Rating Schedule, VA’s Adjudication Procedures Manual, though not binding on the Board, provides benchmarks for mild, moderate, moderately severe, and severe peripheral nerves conditions. Moderate incomplete paralysis is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. Symptoms combinations that may fall into he moderate category include: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The “moderately severe” evaluation level is only applicable for involvement of the sciatic nerve, and includes motor and/or reflex impairment at a grade reflecting a high level of limitation or disability, and potentially atrophy. To be described as “severe,” it would be expected that there is marked muscular atrophy. 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). After a review of all the evidence during the relevant time period, the Board concludes that ratings in excess of 20 percent for the Veteran’s right and left lower extremity radiculopathy are not warranted. In connection with his September 2012 claim for service connection for radiculopathy, the Veteran underwent a VA examination in January 2013. The Veteran complained of pain that radiated to his legs and hips. Sensory examination showed decreased sensation to light touch testing in the lower extremities. Radicular symptoms included moderate bilateral paresthesias and/or dysesthesias and moderate bilateral numbness. The examiner assessed the severity of the Veteran’s right and left sciatic nerve radiculopathy as moderate. A March 2014 VA examiner identified mild incomplete paralysis of the bilateral sciatic nerves on a peripheral neuropathy disability benefits questionnaire (DBQ), though at a back conditions examination on the same day, indicated that the Veteran had moderate bilateral radiculopathy affecting the sciatic nerve. An August 2014 treatment note reflects the Veteran’s complaints of numbness in both legs. At an October 2014 VA examination, the Veteran described radicular pain down both posterior and lateral thighs and numbness and tingling to both feet. Sensory examination showed decreased sensation to light touch testing in the right lower leg/ankle and foot/toes and absent sensation to light touch testing in the left lower leg/ankle and foot/toes. Radicular symptoms noted included moderate constant pain in the lower extremities, mild paresthesias and/or dysesthesias in the right lower extremity and moderate paresthesias and/or dysesthesias in the left lower extremity, and mild (right lower extremity) and moderate (left lower extremity) numbness. The examiner assessed the Veteran’s right and left sciatic nerves as moderate in severity. Radicular symptoms noted at a September 2015 VA examination included severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness in the bilateral lower extremities. The examiner assessed the Veteran’s right and left sciatic nerves as moderate in severity. At a February 2018 VA examination, the Veteran reported low back pain that radiated into his right lower back and right leg. He reported numbness and tingling in his feet all the time that was controlled with pain medications. Radicular symptoms included mild constant pain in both lower extremities; moderate (right lower extremity) and mild (left lower extremity) intermittent pain; and moderate (right lower extremity) and mild (left lower extremity) numbness. The examiner noted that the sciatic nerve was involved and assessed the severity as moderate in the right lower extremity and mild in the left lower extremity. Finally, the Veteran underwent VA back and peripheral nerves examinations in September 2020. At his back examination, radicular symptoms noted included moderate (right lower extremity) and mild (left lower extremity) intermittent pain; mild paresthesias and/or dysesthesias in both lower extremities; and moderate numbness in both lower extremities. The examiner indicated sciatic nerve involvement only and assessed the severity as “moderate” in both lower extremities. At a peripheral nerves examination, the examiner noted moderate incomplete paralysis of the right and left sciatic nerves. There was no involvement of any other nerves. In light of the foregoing, the Board concludes that a preponderance of the evidence is against finding that either the Veteran’s right or left lower extremity radiculopathy was manifested by any more than moderate incomplete paralysis of the sciatic nerve. No VA examiner has assessed the Veteran’s level of incomplete paralysis as anything more than moderate, and the Board has not uncritically adopted the examiners’ assessments of his level of disability; rather, the Board finds that the assessments are consistent with the other evidence of record, to include the Veteran’s own reports of the level of his disability. See Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019). VA and private treatment records, while reflecting ongoing complaints of numbness and tingling in the lower extremities, have never described the radiculopathy as “severe.” Furthermore, as noted above, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. There is no competent and credible evidence of record that the Veteran has any symptoms that are more than wholly sensory. Accordingly, ratings in excess of the currently assigned 20 percent are not warranted. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. Finally, the Board acknowledges that the Veteran uses an assistive device due to his back and radiculopathy disabilities. However, 38 C.F.R. § 4.120 “contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker.” Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). As such, a higher rating is not warranted based on his use of an assistive device. For these reasons, the preponderance of the evidence is against an assignment of disability ratings in excess of 20 percent for either the right or the left lower extremity radiculopathy, and the appeals are denied. 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to an effective date earlier than January 27, 2014 for the award of a TDIU. By way of relevant background, the Veteran filed his initial application for a TDIU in August 2014, in which he asserted that his service-connected back condition prevented him from maintaining substantially gainful employment. See August 2014 VA Form 21-8940. A February 2016 rating decision granted entitlement to a TDIU and assigned an effective date of March 21, 2014. The Veteran disagreed with the assigned effective date, and in a March 2016 rating decision, the AOJ assigned an earlier effective date of January 27, 2014. The Veteran perfected this appeal, seeking an effective date even earlier than January 27, 2014. In a January 2021 Remand, the Board noted that in his August 2014 VA Form 21-8940, the Veteran indicated that his back disability made him too disabled to work on February 28, 2010. The Board remanded the claim for referral to the Director of Compensation Service for consideration of an extraschedular TDIU prior to January 27, 2014 in accordance with 38 C.F.R. § 4.16(b). 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. See 38 C.F.R. § 4.16. A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16 (a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. The economic component requires a determination as to whether a Veteran’s income exceeds the poverty threshold. The noneconomic component requires a determination as to a Veteran’s ability to secure and follow such employment. With regard to the latter component, attention should be given to the Veteran's history, education, skill, and training. Consideration should also be given to both the Veteran’s physical and mental abilities. From a physical standpoint, possible relevant factors include the Veteran's limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Regarding the Veteran’s mental ability, possible relevant factors include limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In determining whether unemployability exists, consideration should not be given to the Veteran’s age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As discussed above, the Veteran became eligible for a TDIU on a schedular basis on January 27, 2014, the date on which service connection for insomnia came into effect, and is in receipt of a TDIU as of that date. He indicated on his August 2014 application for a TDIU that he became too disabled to work on account of his service-connected disabilities February 28, 2010. During the time period from February 28, 2010 to January 27, 2014, the Veteran had a combined 40 percent (June 30, 2010 to September 27, 2012) and 60 percent (from September 27, 2012) rating, and service connection was in effect for lumbar spine DJD and bilateral lower extremity radiculopathy. Medical evidence shows that the Veteran underwent a total left knee replacement in March 2010. See April 2011 VA treatment note. At a June 2010 VA examination for his back, the Veteran told the VA examiner that following his discharge from service, he worked as a high school teacher for almost 20 years and stopped in 1983. He said he last worked in September 2009 hosting seminars on the topic of American Indian heritage. He said he was limited from walking and sitting due to his left knee and his back pain. The examiner described an antalgic gait referable to the left knee condition. At an April 2012 Board hearing, the Veteran stated that his back pain prevented him from lifting anything. At a January 2013 VA examination, the Veteran reported that his low back pain resulted in difficulty with prolonged standing and walking, interference with sleep, and difficulty with bending forward to wash dishes. The examiner opined that the Veteran’s lumbar spine condition did not impact on his ability to work. In his May 2013 Notice of Disagreement, the Veteran asserted that he was entitled to higher ratings for his service-connected lumbar spine and radiculopathy disabilities, but he did not suggest that the conditions precluded employment. As noted, the Veteran wrote in his August 2014 application for a TDIU that the date he last worked full time was February 28, 2010. Based on the foregoing, the Board finds that for the period from February 28, 2010 to January 27, 2014, the Veteran’s service-connected disabilities did not prevent him from finding and maintaining substantially gainful employment. Indeed, no VA examiner during that time period indicated that his back or radiculopathy conditions caused any functional impairment. Also, given the Veteran’s advanced degrees and prior history as an educator and seminar leader, the evidence, as outlined above, simply does not demonstrate that the Veteran would be precluded from securing or following all types of gainful employment, to include light physical work or work at a desk, due exclusively to his lumbar spine and associated radiculopathy disabilities, as they presented during the time period at issue. As noted, a TDIU is in effect as of January 27, 2014, at which point the Veteran’s insomnia disorder is included in the Veteran’s overall rating and which, based on the evidence, contributes substantially to the Veteran’s inability to find and maintain substantially gainful employment. However, as the insomnia disability was not service-connected prior to January 27, 2014, the Board must consider it as a nonservice-connected disability during that period. The Board has also taken into account the March 2021 advisory opinion from the Director of Compensation Service, who noted that the fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to establish entitlement to a TDIU. Rather, entitlement to a TDIU can only be granted when a Veteran’s inability to maintain gainful employment is due solely to service-connected disabilities. In this case, the Director noted the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented gainful employment prior to January 27, 2014, given the Veteran’s education, aptitude to learn new skills, above-average intellect, and the fact that reasonable accommodations would be available to him under the Americans with Disabilities Act. The Board adds that importantly, the evidence shows that it was his nonservice-connected left knee condition that caused significant physical incapacity during the period at issue. The Board cannot consider the effects of any nonservice-connected disabilities. In so finding, the Board notes that the symptomatology associated with the Veteran’s lumbar spine and radiculopathy disabilities is appropriately compensated via the combined rating in effect during the time period at issue. Loss of industrial capacity is the principal factor in assigning schedular ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 states: “[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capacities are impaired). In consideration of the Veteran’s education, training, and work history, the Board must conclude that the overall evidence fails to support that the Veteran’s service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment prior to January 27, 2014. Accordingly, entitlement to a TDIU prior to January 27, 2014, is denied. James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.