Citation Nr: 21028125 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-40 881 DATE: May 10, 2021 ORDER The 40 percent rating, though no greater, is warranted as of June 13, 2014, and no earlier (rather than just as of March 26, 2015), for spinal stenosis of the lumbar spine including degenerative arthritis and intervertebral disc syndrome (IVDS), subject to the statutes and regulations governing the payment of retroactive compensation. Entitlement to a rating in excess of 20 percent for associated radiculopathy of the femoral nerve of the right lower extremity is denied. A higher 20 percent rating, though no greater, as of December 14, 2016, but no earlier, is granted for associated radiculopathy of the femoral nerve of the left lower extremity, subject to the statutes and regulations governing the payment of retroactive compensation. Entitlement to a rating higher than 10 percent for associated radiculopathy of the sciatic nerve of the right lower extremity is denied. Entitlement to a rating higher than 10 percent for associated radiculopathy of the sciatic nerve of the left lower extremity is denied. An earlier effective date of March 26, 2015, though no earlier, is granted for a total disability rating based on individual unemployability (TDIU), subject to the statutes and regulations governing the payment of retroactive compensation. As well, an earlier effective date of March 26, 2015, though no earlier, is granted for basic eligibility for Dependents' Educational Assistance (DEA) benefits, also subject to the statutes and regulations governing the payment of retroactive compensation. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the Board finds that a 40 percent rating, though no higher, is warranted for his service-connected lumbar spine disability as of June 13, 2014 (rather than just as of March 26, 2015), since the date of an examination showing he had pain in this segment of his spine starting at 30 degrees of forward flexion and continuing to the terminal point of 40 degrees. 2. Prior to February 19, 2014, he did not have right lower extremity femoral nerve radiculopathy, and at no point has it manifested in more than moderate symptoms. 3. Prior to February 19, 2014, he did not have left lower extremity femoral nerve radiculopathy, and from February 19, 2014 to December 14, 2016, it was no more than mild, and since December 14, 2016, it has been no more than moderate. 4. Prior to December 14, 2016, he did not have left or right lower extremity sciatic nerve involvement, and at no point has it been more than mild. 5. Resolving reasonable doubt in his favor, effectively since March 26, 2015, his service-connected disabilities have precluded him from obtaining and/or maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering his level of education, prior work experience, and training. CONCLUSIONS OF LAW 1. The criteria are met for a 40 percent rating, though no higher, as of June 13, 2014 (rather than just as of March 26, 2015), though no earlier, for the Veteran's service-connected lumbar spine spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237, 5242-5243. 2. The criteria are not met for increased ratings for right lower extremity femoral nerve radiculopathy, right lower extremity sciatic nerve radiculopathy, and left lower extremity sciatic nerve radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DCs 8520, 8526. 3. But the criteria are met for a higher 20 percent rating, though no greater, since December 14, 2016, though no earlier, for the radiculopathy of the femoral nerve of the left lower extremity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8526. 4. The criteria are met for an earlier effective date of March 26, 2015, for the grant of the TDIU, but not for an even earlier effective date. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.340, 3.341, 3.400, 4.15, 4.16, 4.18, 4.19. 5. The criteria also are met for an earlier effective date of March 26, 2015, for the grant of basic eligibility for DEA benefits, but not for an even earlier effective date. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In January 2014, the local Regional Office (RO) granted service connection for degenerative changes at L5-S1 and assigned an initial 10 percent rating for this lumbar spine (low back) disability retroactively effective from August 21, 2013, the date of receipt of the Veteran's claim for service connection for this condition. In February 2014, so within a year of that August 2013 rating decision, the Veteran requested an increased rating, so, in response, the RO had him undergo a VA examination in March 2014 reassessing the severity of this disability. After considering the results, the RO issued a rating decision in April 2014 continuing the 10 percent rating (i.e., denying an increased rating). In May 2014, so the following month, the Veteran filed a Notice of Disagreement (NOD) with that decision, but which the RO construed, instead, as an entirely new claim for an increased rating. And, in July 2014, the RO granted a higher 20 percent rating retroactively effective from May 29, 2014, the date it had received the Veteran's supposed claim for an increased rating. In August 2014, he filed a VA Form 21-526EZ requesting an even higher rating, essentially disagreeing with the July 2014 rating decision and submitting additional evidence to show why an even higher rating was warranted. In August 2014, the RO continued the 20 percent rating. In June 2015, the Veteran filed a new claim for an increased rating (although he also stated that he was filing a NOD; a NOD must have been filed on a VA Form 21-0958 effective March 24, 2015 under the legacy system). However, new evidence was also submitted. In a June 2015 rating decision, the RO continued the 20 percent rating, and, in response, the Veteran filed another NOD. In a June 2017 rating decision, the RO granted a higher 40 percent rating retroactively effective from March 26, 2015. Given that procedural history, however, the Board finds that the Veteran's claim for a higher rating for his low back disability has been pending since he filed his initial application in August 2013. See 38 C.F.R. §§ 3.156 and 20.302. Moreover, since his bilateral (left and right) lower extremity radiculopathy affecting the femoral and sciatic nerves is associated with his lumbar spine disability, this appeal also necessarily includes considering whether higher ratings also are warranted for this consequent neurological impairment. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). Increased Ratings 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 (Rating Schedule). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, premature or excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); and Burton v. Shinseki, 25 Vet. App. 1 (2011) (indicating to apply 38 C.F.R. § 4.59 regarding painful motion even in cases that do not involve arthritis). But the Court also has held that 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Moreover, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, pain itself does not constitute functional loss. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. Under the General Rating Formula for Disease and Injuries of the Spine, the following symptoms and ratings are provided: unfavorable ankylosis of the entire spine (100 percent); unfavorable ankylosis of the entire thoracolumbar spine (50 percent); forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (40 percent); forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent). 1. Entitlement to increased ratings for the lumbar spine disability August 21, 2013 to May 29, 2014 (rated as 10-percent disabling) The Veteran would be entitled to a higher rating if he had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion not greater than 120 degrees, or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis. He would be entitled to a higher rating if he had incapacitating episodes having a total duration of at least two weeks during the past 12-month period. A June 2013 VA clinical record reflects that the Veteran had normal range of motion of the back and had no back or SI tenderness. A July 2013 VA clinical record reflects +3 lower back pain, and another record notes "discomfort" in the back "#1 -2". An August 2013 record notes "extreme" low back pain herniated disc, pain "up to 10/10". An October 2013 VA clinical record reflects that the Veteran reported that his low back pain is no longer relieved with ice, and a VA social worker record reflects that the he stated that he "hurt my back again." The lower back pain was a level 4/10. Another October 2013 rheumatology record notes that he has pain in the lower back which is band-like and a 4/10 in severity, with morning stiffness for 30 minutes, and for which he takes ibuprofen approximately twice a week for pain. A January 2014 Disability Benefits Questionnaire (DBQ) for the back reflects that the Veteran reported back pain, which was an ache in nature, constant, and a 4-10/10 on the pain scale. He was taking Tylenol, Advil, or ibuprofen as needed for pain. He did not report flare-ups. On examination, he had forward flexion to 75 degrees, with objective evidence of pain at 75 degrees. He had extension to 20 degrees with objective evidence of pain at 20 degrees. He had full lateral flexion and rotation, with no objective evidence of pain. There was no change in range of motion after repetitive use testing. The Veteran had weakened movement, excess fatiguability, and pain on movement. He did not have guarding resulting in abnormal gait or abnormal spinal contour. He used a back brace occasionally. March and April 2014 VA clinical records reflect that the Veteran reported that he had previously been able to control his back symptoms with ice but two years ago, his symptoms worsened. He reported that the are worse in the morning, and he has difficulty going to the bathroom and getting out of bed. He described the pain as between a 6-9/10, and at least on one occasion, he had woken up three times at night due to pain. He also stated that rainy weather contributed to his symptoms. A March 24, 2014 notes severe limitation of flexion and moderate decrease in extension but does not provide actual degrees. The Board finds that a higher evaluation is not warranted during this initial period. The Veteran's complaints of pain have been considered, however, even considering them, a rating higher than 10 percent is not warranted. Pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id., at 43; see also 38 C.F.R. § 4.40 The most probative evidence concerning range of motion during this initial period is the DBQ indicating the Veteran had forward flexion to 75 degrees, albeit with pain noted at 75 degrees, so not until that terminal endpoint. Moreover, that extent of range of motion significantly exceeds the 30 to 60 degrees range limitation required for a higher 20 percent rating. Although a subsequent record notes "severe" limitation, there is no actual provision of what the range of motion was, so of what it was limited to, allowing the Board in turn to determine whether it fell within the range required for a higher rating. In other words, that limitation was not quantified in terms of degrees. Moreover, although the Veteran has reported impairment, there is nothing suggesting he has been prescribed bedrest by a physician to conclude he has had an incapacitating episode. May 29, 2014 to March 26, 2015 (rated as 20-percent disabling) In a statement received by VA on May 29, 2014, the Veteran stated that he was "now contending with consequences resulting from ordinary every-day things like sneezing and coughing", that in addition to symptoms with standing, sitting is increasingly difficult, that the frequency of his debilitating level of pain has increased, and that Ibuprofen is not as helpful as it used to be. He added that he awakens several times a night due to pain when moving in his sleep, and that he cannot sit for two hours at a time. A June 2014 DBQ shows the Veteran reported back pain flare ups with twisting, turning, lifting, and running. He stated that they occur 5 days out of 7 days, and that they significantly restrict his range of motion. He reported that during bad days, his range of motion is decreased by 70 percent lasting three days, and during a really bad flare up, he can stay home for a week. He also reported that he has been sent home from work (he stopped working in April 2013, prior to the effective date of service connection, when he had been laid off) and when he gets a severe spasms, his only relief is to stay in a fetal position for 16 hours. Upon examination, he had forward flexion to 40 degrees with objective evidence of pain at 30 degrees. He had extension to 10 degrees with objective evidence of pain at 5 degrees. He had one week, but less than two weeks, during the past 12 months of incapacitating episodes. He regularly used a brace for daily lumbar support. The examiner noted that the Veteran was able to sit, stand, and transfer, and sit in a chair forward flexed to approximately 90 degrees. The Veteran declined to perform repetitive-use testing due to pain. An August 2014 record reflects that the Veteran has severe muscle spasm of the lumbar spine and DDD at L5-S1 without nerve involvement. Resolving reasonable doubt in the Veteran's favor, the Board finds that a higher rating of 40 percent, though no greater, is warranted effective from June 13, 2014, the date of the examination. Although the Veteran was able to forward flex to 45 degrees, his pain started at 30 degrees, and while it did not cause functional impairment at 30 degrees, the Board can reasonably find that based on the 30 degree onset of pain, his desire to not perform repetitive use testing due to his pain, and the reported symptoms to include the frequency and duration of flare-ups, that the severity of his disability rose to the level which warrants a 40 percent rating. The date of the examination is the earliest date upon which it is ascertainable that his symptoms more closely approximated the 40 percent rating rather than a lower rating. March 26, 2015 to present (rated as 40-percent disabling) A December 2016 DBQ explains the Veteran reported flare ups occurring once every two months. He reported difficulty with physical activities and with prolonged sitting or standing, moving around to perform cleaning, and grooming. Upon examination, he had forward flexion to 20 degrees and extension to 10 degrees. Pain was noted on examination and the Veteran was unable to perform repetitive use testing due to pain. It was noted that he stands with a stooped posture, has guarding, and has limited motion due to back pain. He did not have ankylosis. He had not had incapacitating episodes in the past 12 months. He wore a lumbar orthosis at all times. A higher 50 percent rating is not appropriate in this case as the evidence does not at any point reflect findings suggestive of unfavorable ankylosis of his entire thoracolumbar spine or anything akin to it. In other words, the evidence does not reflect that his spine is fixed in flexion or extension, and the ankylosis results in 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. See 38 C.F.R. § 4.71a, DCs 5235-5242, Note (5). Aside from that definition provided in Note (5), ankylosis has been defined in caselaw as stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. By definition, there is no spinal motion. Here, though, there is not this required indication even accepting that the Veteran's range of motion of his low back is far from normal, especially during a flare-up, or clinical evidence that he has one of the other required manifestations. In addition, there are no clinical records reflecting incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. The Veteran's choice to stay in bed, so by his election, is insufficient to find that it was tantamount to an incapacitating episode because it was not prescribed by a physician. The Board still additionally has considered the neurological effects of the Veteran's low back disability, meaning aside from the bilateral lower extremity radiculopathy that he already has separate ratings for involving his femoral and sciatic nerves. Although the June 2014 DBQ notes questionable post void dribbling/urinary urgency, there also was suspicion it was due, instead, to a prostate issue, and the January 2014 DBQ, an August 2014 clinical record, and the December 2016 DBQ all clarify the Veteran does not have bowel or bladder dysfunction because of his lumbar spine disability. Thus, the most probative evidence is against finding that a separate rating is warranted for bowel or bladder impairment owing to his low back disability. 2. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy of the femoral nerve. AND 3. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy of the femoral nerve. AND 4. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve. AND 5. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve. The Veteran's femoral nerve involvement is rated effective from February 19, 2014 under DC 8526, which allows for a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 30 percent rating for severe incomplete paralysis, and a 40 percent rating for complete paralysis of the quadriceps extensor muscles. The Veteran has a 20 percent rating for his right lower extremity and a 10 percent rating for his left lower extremity involvement. These descriptive terms "mild," "moderate," and "severe" are not specifically defined in the Rating Schedule; rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. According to 38 C.F.R. § 4.124a, when the involvement is wholly sensory, the evaluation should be for the mild or, at the most, the moderate degree. Examples of physical manifestations include, but are not limited to, muscle weakness, muscle atrophy and diminished or absent reflexes. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). When the rating impairment is wholly sensory, a rating commensurate with mild incomplete paralysis is reasonably assigned when symptoms are recurrent but not continuous and are not noted, when occurring, to be more than moderate. Moreover, physical manifestations do not automatically require a rating in excess of moderate incomplete paralysis. Miller v. Shulkin, 28 Vet. App. 376, 379-80 (2017). Rather, wholly sensory impairment may only be rated commensurate with mild or moderate impairment. When adjudicating claims not involving wholly sensory impairment (i.e., there is a mix of physical and sensory impairments, such as decreased reflexes and numbness), the Board finds that a rating of mild incomplete paralysis is warranted when there are less persistent sensory deficits that affect small areas, or for very minimal reflex or muscle strength impairment. A rating of moderate incomplete paralysis may be warranted when there are combinations of significant sensory changes and mild or slight muscle or reflex impairment, or muscle and/or reflex impairment that has been noted by the examiner to be moderate in nature. The Board is not bound by the examiner's characterization of the severity of the disabilities. The January 2014 DBQ shows the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. A June 2014 DBQ list a diagnosis of radiculopathy. The Veteran had normal reflexes, normal sensory examination, and negative straight leg raising test. He reported moderate right lower extremity constant pain, mild left lower extremity constant pain, no paresthesias and/or dysesthesias, and no numbness. The examiner found that the Veteran had right femoral nerve root involvement that was moderate in severity. Although, the examiner did not check that the Veteran had left femoral nerve root or any other root involvement, the examiner diagnosed the Veteran with left lower extremity mild radiculopathy. A December 14, 2016 DBQ indicates the Veteran had mild right lower extremity constant pain, and moderate left lower extremity constant pain. He had moderate intermittent right lower extremity pain, and severe intermittent left lower extremity pain. He had no right lower paresthesias and/or dysesthesias. He had moderate left lower extremity paresthesias and/or dysesthesias. He had no right lower extremity numbness, and moderate left lower extremity numbness. The examiner found that both the sciatic and the femoral nerves were involved; the combined impairment was moderate for both the right and the left. The Veteran had 4/5 muscle strength for hip flexion and knee extension, and 5/5 muscle strength for ankle plantar flexion, ankle dorsiflexion, and great toe extension. He had all normal reflexes. He had all normal sensory examination findings for the right lower extremity, and all normal, except for the lower leg/ ankle. The lower leg/ankle had decreased, but not absent, sensory findings. The Board finds that a rating in excess of 20 percent is not warranted for the right femoral nerve involvement. As already alluded to, the Veteran would be entitled to a higher 30 percent rating if he had severe symptoms; however, no examiner has found such. Moreover, a review of his symptoms, as discussed, also reflects no more than moderate severity, especially given his normal reflexes and sensations upon examination in June 2014 and December 2016, and his lack of paresthesias and/or dysesthesias or numbness in June 2014 and December 2016. The Board also finds that a rating in excess of 10 percent is not warranted for the left femoral nerve involvement prior to December 14, 2016. The Veteran had only mild constant pain in June 2014, and no other symptoms. But the Board finds that a higher 20 percent rating is warranted as of December 14, 2016 based on his greater levels of pain, paresthesias and/or dysesthesias, moderate left lower extremity numbness, and 4/5 muscle strength for hip flexion and knee extension. However, as he had all normal reflexes, and mostly normal sensory findings, a rating exceeding moderate impairment is not warranted. The Veteran's radiculopathy with sciatic nerve involvement is rated under DC 8520 effective from December 14, 2016. The Board finds that ratings higher than 10 percent are not warranted. According to DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately-severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and a maximum 80 percent rating is warranted for complete paralysis (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). The January 2014 DBQ indicates the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy, and the June 2014 DBQ reflects only femoral nerve involvement. Thus, the most probative evidence is against finding that a separate rating is warranted for sciatic nerve involvement for that time period. Moreover, the Veteran has not been shown to be competent to state which nerve is involved (femoral versus sciatic) in relation to his complaints. The Board also finds that a rating in excess of 10 percent is not warranted for either lower extremity's sciatic nerve involvement after December 14, 2016. In evaluating the Veteran's disability, the examiner found moderate radiculopathy of the right and left lower extremity. This "moderate" evaluation includes consideration of both sciatic and femoral involvement. When looking at the Veteran's muscle strength (i.e., a non-sensory characteristic), he had normal ankle plantar extension, normal ankle dorsiflexion, and normal great toe extension bilaterally. Muscles below the knee are affected by the sciatic nerve (see rating codes); thus, there was not sciatic nerve muscle impairment. The decreased strength of 4 out of 5 was related to the hip flexion and knee examination, which would involve the femoral nerve. Given the normal muscle strength, normal reflexes, and normal sensory findings, with the exception of decreased, but not absent, for the lower leg/ankle on the left, the Board finds that the current 10 percent ratings adequately compensate the Veteran for his symptoms. 6. Entitlement to an effective date earlier than October 28, 2016 for the grant of a TDIU The Veteran has had a TDIU effectively since October 28, 2016. He is requesting an earlier effective date for this benefit; he wants it to "be granted from March 26, 2015". See February 2020 correspondence. Precedent cases of the Court have discussed how a Veteran and representative may limit the scope of an appeal. Cf. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's 60 percent rating (which is from June 13, 2014 based on the Board's grants in this decision) is predicated on his lumbar spine disability and associated bilateral lower extremity femoral radiculopathy. These multiple service-connected disabilities may be considered as one aggregate disability due to their nature (i.e., the result from common etiology). See 38 C.F.R. § 4.16(a). Thus, the Veteran has sufficient ratings for his service-connected disabilities to meet the schedular requirements for a TDIU. The Veteran last worked in April 2013 when he was laid off because his services were no longer required. A VA Form 21-4192 affirms he last worked on April 15, 2013; he had been working 40 hours a week and had not lost any time during the prior 12 months due to disability. Social Security Administration (SSA) records show he had extensive history of employment in computers. Most recently, he was employed from October 2011 to April 2013 as an assistant network administrator at a private high school. He reported walking 2.5 hours a day, standing 2.5 hours a day, and sitting 2.5 hours a day at that job. He reported that, if something heavy arrived, he would call building services to do the lifting. On his June 2014 SSA application, the Veteran reported that, on a "bad" day, sitting for two hours can be extremely painful. He reported that, each morning, he takes a hot shower, then uses a TENS unit, then does back and abdominal exercises and stretches, uses a back-brace (corset), and takes pain medication. He also reported that he does not stand or sit in the same position for too long. Finally, he explained that he uses the TENs unit at night. On his November 2015 TDIU application (VA Form 21-8940), the Veteran stated that he can no longer work due to severe pain in his lower back and radiculopathy, which are increasing in frequency and intensity of pain. The clinical records discussed earlier in this decision support a worsening of his disabilities since 2013. In a January 2020 statement, the Veteran stated that from March 2015 to October 2016 his symptoms were chronic and, when present, were severe, indeed, to the point that he needed assistance. He asserted that he has been completely non-functioning for as long as 10 days to two weeks. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Veterans Court (CAVC) held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. The exact date upon which the Veteran's service-connected disabilities became severe enough to preclude substantially gainful employment cannot be determined with certainty. However, in resolving all reasonable doubt in his favor, the Board finds that his limited range of motion, radiculopathy, and, as importantly, his consequent severe pain (which reasonably can be expected to impair his concentration/focus) have precluded him from re-entering the workforce and engaging in substantially gainful employment since March 26, 2015, the date that he and his agent have contended this TDIU benefit should be effective from. 7. Entitlement to an earlier effective date for DEA benefits For the purposes of entitlement to DEA benefits under 38 U.S.C. Chapter 35, basic eligibility exists if, among other things, the Veteran was discharged from service under conditions other than dishonorable and he has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. Since the Board has determined that the proper effective date for the TDIU is March 26, 2015, it follows that this also is the correct effective date for the derivative entitlement to DEA benefits. Therefore, the Board concludes that an earlier effective date of March 26, 2015, for the grant of basic eligibility for DEA benefits is also warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.