Citation Nr: 21026476 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 12-09 720 DATE: May 3, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for the service-connected thoracolumbar spine disability is denied. Prior to January 26, 2015, entitlement to a disability rating higher than 10 percent for the service-connected right lower extremity radiculopathy is denied. From January 26, 2015, to November 2, 2020, entitlement to a disability rating higher than 20 percent for the service-connected right lower extremity radiculopathy is denied. Since November 2, 2020, entitlement to a disability rating higher than 40 percent for the service-connected right lower extremity radiculopathy is denied. Prior to January 26, 2015, entitlement to a disability rating higher than 10 percent for the service-connected left lower extremity radiculopathy is denied. From January 26, 2015, to November 2, 2020, entitlement to a disability rating higher than 20 percent for the service-connected left lower extremity radiculopathy is denied. Since November 2, 2020, entitlement to a disability rating higher than 40 percent for the service-connected left lower extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to January 26, 2015, is denied. FINDINGS OF FACT 1. The service-connected thoracolumbar spine disability is manifested by painful motion of the thoracolumbar spine without any form of ankylosis. 2. Prior to January 26, 2015, the service-connected right lower extremity radiculopathy was manifested by mild incomplete paralysis of the sciatic nerve. 3. From January 26, 2015, to November 2, 2020, the service-connected right lower extremity radiculopathy was manifested by moderate incomplete paralysis of the sciatic nerve. 4. Since November 2, 2020, the service-connected right lower extremity radiculopathy is manifested by moderately severe incomplete paralysis of the sciatic nerve. 5. Prior to January 26, 2015, the service-connected left lower extremity radiculopathy was manifested by mild incomplete paralysis of the sciatic nerve. 6. From January 26, 2015, to November 2, 2020, the service-connected left lower extremity radiculopathy was manifested by moderate incomplete paralysis of the sciatic nerve. 7. Since November 2, 2020, the service-connected left lower extremity radiculopathy is manifested by moderately severe incomplete paralysis of the sciatic nerve. 8. Prior to January 26, 2015, the combined disability rating for multiple service-connected disabilities was 50 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 40 percent for the service-connected thoracolumbar spine disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2021). 2. Prior to January 26, 2015, the criteria for a disability rating higher than 10 percent for the service-connected right lower extremity radiculopathy were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2021). 3. From January 26, 2015, to November 2, 2020, the criteria for a disability rating higher than 20 percent for the service-connected right lower extremity radiculopathy were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2021). 4. Since November 2, 2020, the criteria for a disability rating higher than 40 percent for the service-connected right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2021). 5. Prior to January 26, 2015, the criteria for a disability rating higher than 10 percent for the service-connected left lower extremity radiculopathy were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2021). 6. From January 26, 2015, to November 2, 2020, the criteria for a disability rating higher than 20 percent for the service-connected left lower extremity radiculopathy were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2021). 7. Since November 2, 2020, the criteria for a disability rating higher than 40 percent for the service-connected left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2021). 8. Prior to January 26, 2015, the criteria for TDIU were not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from March 1973 to June 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2018 Decision of the United States Court of Appeals for Veterans Claims (Veterans Court). The appeal originates from March 2010 and December 2011 rating decisions of the RO in Atlanta, Georgia. In July 2015, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is associated with the claims file. In a January 2016 decision, the Board denied these claims. The Veteran appealed the Board's decision to the Veterans Court. In a November 2018 decision, the Veterans Court vacated the Board's January 2016 decision and remanded these issues to the Board for additional development. In January 2016, the Board also denied TDIU entitlement on a schedular basis, and remanded to the Agency of Original Jurisdiction (AOJ) the issue of TDIU entitlement on an extraschedular basis. Subsequently, in a June 2017 decision, the Board denied the issue of entitlement to TDIU on an extraschedular basis. The Veterans Court took no action on the extraschedular TDIU issue in November 2018, as it was not then a subject of a final Board decision. The Veterans Court vacated and remanded the Board's denial of TDIU entitlement on a schedular basis only. Accordingly, the issue of extraschedular entitlement is now subject to a final Board decision. In July 2019, the Board remanded this appeal for additional evidentiary development consistent with the holding of the Veterans Court. On remand to the AOJ, the claim of entitlement to service connection for a mental disorder was granted, fully resolving the appeal as to that issue. In addition, the claim of entitlement to TDIU was granted with an effective date of January 26, 2015. That issue remains on appeal prior to that date. The appeal has since been returned to the Board for further appellate action. Increased RatingsLaw and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to a disability rating in excess of 40 percent for the service-connected thoracolumbar spine disability. In a December 2011 rating decision, the RO granted service connection for lumbar intervertebral disc syndrome with thoracolumbar degenerative arthritis and assigned a 40 percent rating under Diagnostic Code 5242, effective August 5, 2009. The RO also assigned separate ratings of 10 percent each under Diagnostic Code 8520, for associated sciatic nerve impairment of the right lower extremity and left lower extremity, each effective August 5, 2009. As noted above, the Board denied these rating claims in January 2016. The Veterans Court vacated and remanded that decision as to these issues based on the Board's determination that new examinations were not necessary to evaluate the service-connected spine and lower extremity disabilities. On remand from the Veterans Court, the Board remanded those issues to the AOJ for new examinations. Based on those examinations, the AOJ granted increased ratings for the lower extremity neurological conditions. For each lower extremity, a rating of 20 percent was assigned, effective January 26, 2015, and a rating of 40 percent was assigned, effective November 2, 2020. Effective February 7, 2021, degenerative arthritis, and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. A rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76464 (Nov. 30, 2020). These changes do not affect the ratings assigned for either condition, but simply affect the diagnostic code to be assigned. All disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The General Rating Formula encompasses such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. Diagnostic codes 5235-5244 are included. A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 40 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992). The requirement of ankylosis in the General Rating Formula can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Application of 38 C.F.R. §§ 4.40 and 4.45 may entitle a veteran to a higher rating than would otherwise be supported by mechanical application of a diagnostic code where a disability causes additional functional loss with use or during flares. See Chavis v. McDonough, No. 18-2928 (2021). A VA examination of the spine in February 2011 reveals that the Veteran was then residing at home and was capable of selfcare. He was able to ambulate without the use of a device. He did not experience difficulty balancing. He reported limitation in walking because of his spine condition. He can walk 150 feet and it takes 3 minutes to accomplish this. He reported falls due to the spine condition. He also reported stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. He has weakness of the spine, leg, and foot. He reported having no bowel or bladder problems in relation to the spine condition. He reported experiencing constant pain that is severe. The pain can be exacerbated by physical activity and stress. At the time of pain, he can function with medication. During flares he experiences functional impairment which is described as pain stiffness and limitation of motion. He was never hospitalized nor had any surgery for this condition. His condition in the prior 12 months had not resulted in any incapacitation. He could not run, bend, sit, stand, or walk for extended periods. Examination of the thoracolumbar spine revealed evidence of radiating pain on movement, described as shooting pain with active movement. Paravertebral muscle spasms were present, but did not produce an abnormal gait. There was guarding of movement, but did not produce an abnormal gait. There was tenderness to palpation noted on examination. Spinal contour was preserved. The examination revealed weakness of movement. Muscle tone was normal. Musculature was normal. There was no ankylosis of the thoracolumbar spine. Flexion was demonstrated to 30 degrees with onset of pain at 25 degrees. After repetitions, flexion was demonstrated to 30 degrees. Extension was demonstrated to 25 degrees before and after repetition, with onset of pain at 25 degrees. Lateral flexion and rotation were demonstrated to 30 degrees bilaterally, before and after repetitions, with onset of pain at 25 degrees. Joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Range of motion of the thoracolumbar spine was described by the examiner as grossly normal. He was able to walk without the assistance of another person for 200 feet. The functional impairment from the established diagnoses was fatigue with exertion, and difficulty with prolonged standing, walking, or climbing stairs. There were no restrictions on the Veteran's ability to leave home. The Veteran's usual occupation was not affected by his conditions (Record 02/23/2011). Primary Care Attending Notes on April 2, 2012, and May 7, 2013, reveal no joint deformity or swelling; the Veteran's spine had no scoliosis with only slightly decreased range of motion in all directions (Record 03/13/2014). A January 7, 2014, X-ray reveals minimal retrolisthesis at L3-4; otherwise, normal alignment. There was moderate degenerative disc space narrowing and facet arthrosis at L5-S1 and L4-5 (Record 08/13/2015 at 12). A VA examination of the spine in November 2020 reveals diagnoses of lumbar intervertebral disc syndrome and thoracolumbar degenerative arthritis. Symptom flares occur daily and are severe. These last for a few hours and are precipitated by repetitive lifting, quick movements, prolonged standing, and walking. Forward flexion was to 30 degrees; extension to 15 degrees; lateral flexion to 15 degrees, bilaterally; and, rotation to 15 degrees, bilaterally. The range of motion itself did not contribute to a functional loss. Pain causes functional loss. Pain was experienced with all motion. There was evidence of pain with weight bearing. After repetitive use, flexion was reduced to 25 degrees, but the other measurements remained the same as initial testing. Functional loss consisted of pain and lack of endurance. After repetitive use over a period of time, range of motion was estimated to be 20 degrees of forward flexion and 10 degrees of extension, lateral flexion, and rotation. With flares, range of motion was estimated to be 15 degrees of forward flexion and 5 degrees of lateral flexion and rotation. There were no muscle spasms. The Veteran's gait was normal. The Veteran regularly used a brace. There was objective evidence of pain on passive range of motion testing of the back and on non-weight bearing testing of the back. A goniometer was used for all joint range of motion measurements. The effect on employment involved pain, stiffness, and limited range of motion, as well as difficulty lifting over 15 pounds (Record 11/06/2020). After a review of all of the evidence, the Board finds that the criteria for a disability rating higher than 40 percent for the service-connected thoracolumbar spine disability are not met. As set above, the only ratings higher than 40 percent under the General Rating Formula require some degree of unfavorable ankylosis. For VA compensation purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a, General Formula, Note (5). It is clear from the medical evidence that true ankylosis is not shown, either favorable or unfavorable. The Veteran has always retained some degree of flexion and extension and has always been able to attain the neutral position of neither extension nor flexion. Service connection for a cervical spine disorder is not in effect. Therefore, the rating of 100 percent is not available, as such a rating requires cervical and thoracolumbar impairment. The Board has considered whether application of 38 C.F.R. §§ 4.40 and 4.45 might approximate unfavorable ankylosis of the thoracolumbar spine or the entire spine during flares. See Chavis, supra. However, unfavorable ankylosis of the spine requires other symptomatology as set out above, which is not demonstrated by the effects of pain during flares on range of motion. If not shown to be present, symptoms affecting line of vision, opening of the mouth, chewing, breathing, gastrointestinal system, and neurological system, cannot be shown or approximated by the effects of pain on motion of the thoracolumbar spine. Moreover, the Veteran has not asserted that he cannot reach the neutral position during flares, a key component of unfavorable ankylosis. Regarding the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the only rating higher than 40 percent requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. While the Veteran has reported episodes during flares that may well be incapacitating, he has not reported that bed rest has been prescribed by a physician or that such episodes require treatment by a physician. Accordingly, the criteria for a higher rating under that formula are not met. The rating schedule does not contemplate a separate rating for intervertebral disc syndrome, but specifically directs to use the formula which results in the higher evaluation. The evidence does not substantiate the presence of any separately ratable neurological abnormalities associated with the thoracolumbar spine disability that have not already been assigned separate ratings. See 38 C.F.R. § 4.71a, General Formula, Note (1). To summarize the Board's findings, the service-connected thoracolumbar spine disability has been manifested throughout the period on appeal by painful motion of the thoracolumbar spine without unfavorable ankylosis of the thoracolumbar spine, without incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician, and without additional separately ratable neurological abnormalities. In light of these findings, the Board concludes that a rating higher than the currently assigned 40 percent is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to an increased disability rating for the service-connected right lower extremity radiculopathy, currently rated 10 percent prior to January 26, 2015, 20 percent prior to November 2, 2020, and 40 percent since November 2, 2020. Entitlement to an increased disability rating for the service-connected left lower extremity radiculopathy, currently rated 10 percent prior to January 26, 2015, 20 percent prior to November 2, 2020, and 40 percent since November 2, 2020. In a December 2011 rating decision, the RO granted service connection for sciatic nerve impairment of the right lower extremity and left lower extremity under Diagnostic Code 8520, each effective August 5, 2009. Under Diagnostic Code 8520, neuritis, neuralgia, or paralysis of the sciatic nerve is to be assigned an 80 percent rating if paralysis is complete, such that the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Lower ratings are available for neuritis, neuralgia, or paralysis of the sciatic nerve that is incomplete. A 60 percent rating is to be assigned for a severe condition, with marked muscular atrophy. A 40 percent rating is to be assigned for a moderately severe condition. A 20 percent rating is to be assigned for a moderate condition. A 10 percent rating is to be assigned for a mild condition. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. A VA examination of the lower extremities in February 2011 reveals that lower extremity motor function was within normal limits. Sensory examination to pin prick/pain, touch, position, vibration, and temperature was intact. Lower extremity reflexes were 2+ at knees and ankles. Peripheral nerve involvement was not evident during examination. Lumbar and sacral sensory function was impaired. Motor strength of bilateral right and left hip abduction was 4/5. The lower extremities showed no signs of pathologic reflexes. The examination revealed normal cutaneous reflexes. The functional impairment from the established diagnoses was fatigue with exertion, and difficulty with prolonged standing, walking, or climbing stairs. There were no restrictions on the Veteran's ability to leave home. The Veteran's usual occupation was not affected by his conditions (Record 02/23/2011). An August 5, 2011, Primary Care Attending Comprehensive Assessment reveals that the Veteran's extremities had full range of motion; deep tendon reflexes were intact, equal, and bilateral; pulses were bilateral and symmetrical; filament sensation was intact, and there were no paresthesias or weakness (Record 03/13/2014 at 139). Primary Care Attending Notes on April 2, 2012, and May 7, 2013, reveal no focal deficits. The Veteran was observed to walk with a normal and stable gait with no assistive devices (Record 03/13/2014). A VA peripheral nerves examination was conducted in January 2015. The examiner diagnosed sciatic nerve impairment of the bilateral lower extremities. The Veteran reported both constant and intermittent pain, which he described as severe. He also reported paresthesias and/or dysesthesias, described as moderate, and numbness, described as mild. Testing of muscle strength of the lower extremities was found to be entirely normal. There was no muscle atrophy. Testing of lower extremity reflexes was also entirely normal. Testing of lower extremity sensation was normal with the sole exception of the feet and toes, which had decreased sensation. There were no trophic changes, such as loss of hair, or smooth, shiny skin. The Veteran's gait was normal. The examiner assessed incomplete paralysis of the sciatic nerve and, when given the choice of mild, moderate, moderately severe, or severe, the examiner selected "Mild" with respect to both lower extremities. The examiner opined that the Veteran's peripheral nerve condition does not impact his ability to work (Record 02/05/2015). A VA neurological examination in November 2020 reveals that muscle strength in the lower extremities was full without atrophy. Reflexes were normal. Sensation was reduced in the ankles and feet. Pain, paresthesias/dysesthesias, and numbness were severe. Radiculopathy was assessed as severe. There was no ankylosis or other neurological abnormalities. There were no trophic changes. The Veteran's gait was normal. The examiner assessed the Veteran's overall incomplete paralysis as moderately severe (Record 11/06/2020). After a review of all of the evidence, the Board finds that the criteria for any higher ratings for the lower extremity radiculopathy are not met. For the period since November 2, 2020, a higher rating of 60 percent would require "marked muscular atrophy." In this case, the evidence does not demonstrate any muscular atrophy in the lower extremities. Indeed, strength on the most recent examination was full. The conjunctive "with" at that level means that both criteria must be present. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive in a statutory provision means that all of the conditions listed in the provision must be met). As complete paralysis is not shown, the criteria for an 80 percent rating are also not met. Moreover, the criteria for a 60 percent rating are not more nearly approximated than are the criteria for a rating of 40 percent. For the period from January 26, 2015, to November 2, 2020, the criteria for a rating higher than 20 percent were not met. The Board assigns high probative weight to the assessments of medical examiners regarding the severity of the Veteran's neurological disabilities. This assessment requires knowledge and understanding of the symptomatology reported by the Veteran, of the signs and symptoms present on examination, and of the level of impairment resulting therefrom. The assessment of the January 2015 examiner that there was no more than mild incomplete paralysis and no impact on employment provides probative evidence that severe incomplete paralysis was not present. Indeed, VA has assigned a rating consistent with moderate impairment during this period (20 percent) affording the benefit of the doubt to the Veteran regarding the effects of his lower extremity pain. In this case, the first date as of which it became factually ascertainable that the increase in the disabilities warranting 40 percent ratings occurred is the November 2020 VA examination. Therefore, from January 26, 2015, to November 2, 2020, a ratings higher than 20 percent for each lower extremity are not warranted. For the period prior to January 26, 2015, the criteria for a rating higher than 10 percent were not met. The opinion of the February 2011 examiner provides probative evidence that lower extremity motor function was normal; reflexes were normal; peripheral neuropathy involvement was not evident; and there were no restrictions on the Veteran regarding his occupation. Therefore, the Board concludes that, although the disabilities were present, they were no more than mild. Accordingly, ratings higher than 10 percent for each lower extremity are not warranted. The first date as of which it became factually ascertainable that the increase in the disabilities warranting 20 percent ratings occurred is the January 2015 VA examination. In summary of the Board's findings, prior to January 26, 2015, the service-connected lower extremity disabilities were manifested by mild incomplete paralysis. From January 26, 2015, to November 2, 2020, the service-connected lower extremity disabilities were manifested by moderate incomplete paralysis. Since November 2, 2020, the service-connected lower extremity disabilities are manifested by moderately severe incomplete paralysis. In light of these findings, the Board concludes that no increased ratings are warranted for the service-connected lower extremity neurological disabilities. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371. TDIULaw and Regulations 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. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Entitlement to TDIU on a schedular basis prior to January 26, 2015. In a December 2020 rating decision, during the course of the current appeal, TDIU was granted with an effective date of January 26, 2015. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the agency of original jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). The December 2020 decision is considered a denial of entitlement to TDIU for the appeal period prior to January 26, 2015. Prior to January 26, 2015, service connection was in effect for lumbar intervertebral disc syndrome with thoracolumbar degenerative arthritis changes, rated at 40 percent since June 21, 2007; sciatic nerve impairment of the left lower extremity due to intervertebral disc syndrome, rated at 10 percent since June 21, 2007; sciatic nerve impairment of the right lower extremity due to intervertebral disc syndrome, rated at 10 percent since June 21, 2007; and erectile dysfunction associated with lumbar intervertebral disc syndrome, rated at 0 percent since June 21, 2007. The combined disability rating was 50 percent. Thus, the schedular rating requirement of a combined rating of 70 percent or more, in the case of multiple service-connected disabilities, is not met. 38 C.F.R. § 4.16(a). As noted above, the question of extraschedular entitlement is subject to a final Board decision in June 2017. In November 2018, the Veterans Court found specifically that it did not have jurisdiction over that issue. The Veterans Court also explicitly rejected the Veteran's argument that the Veteran's disabilities of common etiology should be added rather than combined under 38 C.F.R. § 4.25, holding "§ 4.16(a) unambiguously requires VA to use its combined ratings table when aggregating disabilities for the purpose of considering them 'as one disability.'" Accordingly, there is no alternative method available for satisfying the schedular component of TDIU entitlement. The Board therefore concludes that the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.