Citation Nr: 21026781 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-32 219A DATE: May 4, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a rating in excess of 40 percent for a lumbar spine disability is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. Entitlement to an effective date prior to August 2, 2012 for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The weight of the competent and probative evidence shows at worst Level I hearing, bilaterally, and does not reflect an exceptional pattern of hearing loss in either ear. 2. The competent evidence does not show unfavorable or functional ankylosis of the lumbar spine and there have been no incapacitating episodes. 3. The competent and probative evidence weighs against finding severe incomplete paralysis of the right lower extremity. 4. The competent and probative evidence weighs against finding severe incomplete paralysis of the left lower extremity. 5. It was not factually ascertainable that the Veteran was precluded from employment due to service-connected disabilities prior to the assigned effective date of August 2, 2012. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85-4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.71a, Codes 5242, 5243. 3. The criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for an effective date earlier than August 2, 2012, for the award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1988 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA), Regional Office. The Veteran originally requested a hearing before the Board when he filed his substantive appeal, but that request was later withdrawn in September 2017. These matters were previously remanded by the Board in May 2018 and November 2020 for additional development. The Board in the May 2018 remand recharacterized the Veteran's claim from entitlement to PTSD to entitlement to an acquired psychiatric disability to include PTSD, depression, and attention deficit hyperactivity disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Subsequently, the RO granted the claim on appeal by a January 2021 rating decision characterized as service connection for agoraphobia. This represents a full grant of benefits and the Board no longer has jurisdiction over this claim. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Additionally, after additional development directed by the Board regarding a claim for entitlement to service connection for bruxism, the RO granted service connection by a March 2021 rating decision. This also represents a full grant of benefits and the Board no longer has jurisdiction over this claim. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Increased Ratings 1. Entitlement to a compensable rating for bilateral hearing loss. The Veteran contends that he is entitled to a compensable rating for bilateral hearing loss, which is currently evaluated under Diagnostic Code 6100. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85-4.86. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that Veteran is not entitled to a compensable disability rating for bilateral hearing loss. The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. All applicable tests include valid pure tone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85-4.86. On March 2012 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 60 65 LEFT 25 30 35 55 60 Average Hertz for the right ear was 48 and for the left hear was 45. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 in the left ear. On February 2015 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 40 60 60 LEFT 5 30 35 55 60 Average Hertz for the right ear was 46 and for the left hear was 45. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. On December 2020 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 50 65 65 LEFT 30 30 40 65 65 Average Hertz for the right ear was 55 and for the left hear was 50. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. Throughout the period on appeal using the above reported findings, the Veteran's right ear pure tone average combines with the right ear speech discrimination to yield no worse than a Roman numeral I in Table VI, and his left ear pure tone average also combines with the left ear speech discrimination for no worse than a Roman numeral I, per Table VI. 38 C.F.R. § 4.85. Two roman numerals I combine for a zero, or non-compensable, rating in Table VII. The Veteran's private and VA treatment records do not contain audiological findings and do not indicate that his hearing loss is worse than indicated on VA examination. The Board has considered the Veteran's contentions of the effects hearing loss has in his daily life and that his hearing loss is worse than the rating reflects. VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. The Board finds that the competent medical evidence, to include the VA examination testing results, are more probative and outweigh the lay subjective reports of a more severe degree of disability, because they were provided by personnel with specialized training in hearing loss and directly address the rating criteria for the Veteran's hearing loss. The Board notes that VA's Schedule for Rating Disabilities has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). Accordingly, this claim for a higher rating is denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against a compensable rating. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a rating in excess of 40 percent for a lumbar spine disability. The Veteran's lumbar spine disability is currently rated hyphenated Diagnostic Code 5010-5242. These Diagnostic Codes contemplate degenerative arthritis of the spine and intervertebral disc syndrome. Degenerative arthritis of the spine is evaluated using the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Code 5242. Under this formula, the current 40 percent rating is assigned when there is unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. Unfavorable ankylosis is a condition with which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note 5 of the General Rating Formula for Diseases and Injuries of the Spine. Note (5) of the General Formula states that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and results in one or more of the medical conditions described in this note. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Any associated objective neurologic abnormalities, including but not limited to bowel and bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note(1). General Rating Formula for Diseases and Injuries of the Spine. The degenerative arthritis of the spine may also be considered under the rating criteria for degenerative arthritis. That code section instructs that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. The rating based on limitation of motion of the Veteran's degenerative disc disease of the back is accomplished using the General Rating Formula for Diseases and Injuries of the Spine outlined above. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. However, as will be seen, the Veteran's disability is already in receipt of the highest rating it can receive based on limitation of motion since this appeal was initiated. To receive a higher rating, some form of ankylosis is required, meaning that the spine is fixed in one position. The rating criteria for intervertebral disc disease state that this disability is to be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever is most favorable to the Veteran. Under this formula, a 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A rating of 60 percent requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Code 5243. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Code 5243, Note 1. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments do not change the necessary criteria, however, Diagnostic Code 5243, which relates to IVDS states: "assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Therefore, assignment of the Veteran's lumbar spine disability under Diagnostic Code 5242 is proper for the entire appeal period. To summarize, in order for the Veteran to receive a rating in excess of 40 percent for his back disability, the rating criteria requires that there be a showing of unfavorable ankylosis of either the entire thoracolumbar spine or the entire spine. See 38 C.F.R. § 4.71a, Code 5242. In the alternative, there must be a showing of incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Code 5243. It is also worth noting that the Court recently held that when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. See Chavis v. McDonough, No. 18-2928 (April 2021); 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the evidence does not support entitlement to a rating in excess of 40 percent for the Veteran's back disability under either of the applicable rating codes. A November 2012 VA examination report shows that the Veteran was diagnosed with back pain. He did not report flare-ups. On range of motion testing, he had forward flexion to 5 degrees. Repetitive use testing could not be conducted as the Veteran only made one attempt. Functional loss was noted to be caused by pain on movement. Pain on palpation was assessed. Guarding and muscle spasms were assessed but they did not result in abnormal gait or spinal contour. Reflex examination was normal. Sensory examination was normal. Straight leg testing was negative. Radicular pain or symptoms due to radiculopathy was not assessed. Radiculopathy was not assessed. No other neurological abnormalities were diagnosed. IVDS was not diagnosed. A February 2015 VA examination report shows that the Veteran was diagnosed with degenerative joint disease of the lumbar spine. The Veteran reported chronic pain that limited all range of motion. Flare-ups were not reported but functional loss caused by the disability were reported as he could not walk more than 30 yards before he had to stop to rest. Bending, sitting, and standing were reported as a struggle. The Veteran also reported radiating burning pain down the right leg into his feet with numbness. Range of motion was noted as forward flexion to 40 degrees with pain that caused functional loss. Pain with weight bearing and tenderness to palpation were assessed. Repetitive use testing was conducted with no additional loss of range of motion. The examiner noted that the evaluation was not conducted after repetitive use over time but that pain would cause functional loss. The examiner could not describe the functional loss in terms of range of motion after repetitive use over time. Guarding was assessed, resulting in abnormal gait and abnormal spinal contour. Ankylosis was not diagnosed. Reflex examination was 3+ for the bilateral knees and ankles. Sensory examination was normal but there were decreased pinprick results of the soles of feet, great toes, and dorsum of both feet. The Veteran was unable to perform straight leg testing. Radicular symptoms were identified as moderate numbness. The examiner assessed the Veteran's radiculopathy as of a moderate severity of both sciatic nerves. No other neurological conditions related the lumbar spine disability were assessed. IVDS was not diagnosed. An October 2016 VA examination report shows that the Veteran was diagnosed with degenerative arthritis of the lumbar spine. The Veteran reported that his back disability caused low back pain that caused him to be stiff, hard to bend, could not walk or stand for longer durations, and could not carry weight. Flare-ups were reported when he lifted weights or walked for a prolonged time. Forward flexion of the thoracolumbar spine was noted as 54 degrees. Pain with weight bearing was noted. Repetitive use testing was conducted without additional loss of range of motion. The examiner reported that the Veteran was examined after immediately after repetitive use over time but the examiner could not opine as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time without speculation. The examiner also noted that the examination was not conducted during a flare-up and an opinion as to functional loss during a flare-up could not be provided without speculation. Reflex and sensory examination were normal. Straight leg testing was noted as positive. Radiculopathy was diagnosed with symptoms of intermittent pain, paresthesias, and numbness all assessed as severe. The left and right sciatic nerves were identified as affected by radiculopathy. The examiner assessed radiculopathy as moderate severity for both sciatic nerves. Ankylosis was not diagnosed. No other neurological conditions were assessed. The Veteran was noted to use a brace and cane for assistance with walking due to his back disability. A December 2020 VA examination report shows that the Veteran was diagnosed with degenerative arthritis of the lumbar spine. The Veteran reported low back pain that was constant and radiated to the lower extremities with numbness and tingling. Flare-ups were not reported. He reported functional limitations that he could not bend, lift, or twist. Forward flexion of the thoracolumbar spine was noted as 50 degrees with pain causing functional loss. Pain with weight bearing was noted. Repetitive use testing showed range of motion was reduced to 40 degrees of forward flexion. The range of motion testing was not conducted after repetitive use over time, however, the examiner noted that forward flexion would be estimated to be limited to 35 degrees. Ankylosis was not diagnosed. Reflex examination was absent for the left knee but normal for the left ankle, and right knee and ankle. Sensory examination was normal. Straight leg testing was positive for right and left sides. The Veteran endorsed constant pain, paresthesias, and numbness in his bilateral lower extremities. The examiner assessed the Veteran's severity of radiculopathy as moderate bilaterally. No other neurological symptoms were assessed. IVDS was not assessed. The Veteran was noted to use a cane and walker for the lumbar spine condition. The Board finds that entitlement to a rating in excess of 40 percent for the Veteran's back disability is not supported by the evidence. There is no evidence that the Veteran's back disability results in ankylosis of the spine, much less unfavorable ankyloses of entire thoracolumbar spine or entire spine. Further, although limited, he has retained range of motion and is able to perform activities such that it cannot be said that he experiences the "functional equivalent" of ankylosis. This competent and probative evidence weighs against a higher rating under the criteria for degenerative arthritis of the spine and the General Rating Formula for Diseases and Injuries of the Spine. The Board has considered entitlement to separate ratings for neurological impairments. Service connection for sciatica for each leg has already been established and will be addressed below. As for other neurological impairments, the Board notes the VA examination reports and VA medical treatment reports of record have not shown any other neurological impairment resulting for the lumbar spine disabilty. As the preponderance of the examination and treatment reports are negative or silent for such associated neurological impairment, therefore a separate rating is not warranted.. 38 C.F.R. § 4.71a, Codes 5242, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Finally, the evidence confirms the Veteran has not been diagnosed with intervertebral disc syndrome on the VA examinations conducted during the appeal period. Further, there is no indication of any physician prescribed bedrest. Therefore, the Board concludes that entitlement to an increased rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. 38 C.F.R. § 4.71a, Code 5243. 3. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity; and entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity. Entitlement to service connection for radiculopathy affecting the sciatic nerve of the right and left lower extremities was granted in a September 2016 rating decision. A 20 percent evaluation was assigned to each disability, effective from February 25, 2015. The Veteran's service-connected peripheral neuropathy has been rated by the RO under the provisions of Diagnostic Code 8520. Under this regulatory provision, an 80 percent rating is warranted for complete paralysis of the sciatic nerve in which 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 lost. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. VA guidance states that moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by 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 or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. For severe incomplete paralysis, in general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. The Court held in Miller v. Shulkin that, "[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level." 28 Vet. App. 376, 380 (2017). Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Board turns to a dictionary to define these terms. In this regard, moderate is generally defined as "tending toward the mean or average amount." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 798 (11th ed. 2003). Severe is generally defined as "of a great degree" or "serious." Id. at 1140. Moderately severe, therefore, could be construed as falling beyond or above the mean or average amount while falling short of being a great degree or serious. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating in excess of 20 percent for radiculopathy of the bilateral lower extremities is not warranted. Relevant evidence in support of the claims including February 2015, October 2016, and December 2020 VA examination reports indicate that the Veteran's symptoms of radiculopathy were sensory in nature and of a moderate severity. Examination reports also shows normal strength and no muscle atrophy. The findings from VA examination reports and treatment records do not tend to reflect symptomatology beyond or above the mean or average amount. The manifestations are wholly sensory manifestations as described above. In particular, the Veteran did not have atrophy and there was no functional impact. Additionally, the VA examination reports characterized the severity as wholly sensory of a moderate degree. The Board acknowledges that by advancing this appeal, the Veteran believes that higher ratings are warranted. However, the Board affords much probative weight to the VA examination reports of record as they include objective testing as well as the Veteran's own reports regarding his symptoms and their severity. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and a rating in excess of 20 percent for the Veteran's service connected right and left lower extremity radiculopathy is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 4. Entitlement to an effective date prior to March 14, 2012 for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran contends that an effective date earlier than August 2, 2012 is warranted for the grant of a TDIU. TDIU may be assigned when the schedular rating is less than 100 percent and disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. If unemployability is claimed as a result of only one service-connected disability, it must be rated at 60 percent or more. If it is a result of two or more disabilities, at least one disability must be rated at 40 percent or more, with at least another sufficient disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.341(a), 4.16(a). 38 C.F.R. § 4.16(a) establishes that 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. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2017). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A veteran's level of education, special training, and previous work experience may be considered as part of a TDIU claim. Age or impairment(s) caused by nonservice-connected disabilities may not be considered when determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. With respect to an earlier effective date, a TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service-connected disabilities rendered a veteran unemployable. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. On Veteran's Application for Increased Compensation Based on Unemployability form (VA Form 21-8940) received on December 3, 2012 the Veteran indicated that he became too disabled to work on August 1, 2012 as a police officer, which was the last day he was employed. A March 2021 rating decision shows that the RO assigned an effective date of August 2, 2012 for the award of TDIU. The Board finds that an effective date of August 2, 2012 is the earliest date a TDIU was warranted, as the facts establish he was engaged in substantial gainful employment prior to that time. Further analysis is not necessary since the Veteran was granted a TDIU effective the date he himself claimed to be unemployed and too disabled to work. The preponderance of the evidence is against the claim for a TDIU due to service-connected disabilities, prior to August 2, 2012, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.