Citation Nr: 21030212 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-15 736A DATE: May 18, 2021 ORDER Entitlement to an evaluation of 20 percent, but no higher, for service-connected thoracic spinal disability prior to September 22, 2020 is granted. Entitlement to an evaluation in excess of 40 percent for service-connected thoracic spinal disability from September 22, 2020 is denied. Entitlement to an initial evaluation in excess of 10 percent for service-connected right lower extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 1, 2020 is denied. FINDINGS OF FACT 1. Prior to September 22, 2020, the Veteran's thoracic spinal disability is manifest by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and a combined range of motion of the thoracolumbar spine not greater than 120 degrees. 2. From September 22, 2020, the Veteran's thoracic spinal disability is manifest by forward flexion of the thoracolumbar spine 30 degrees or less. 3. The Veteran's right lower extremity radiculopathy is manifest by no more than mild incomplete paralysis of the sciatic nerve. 4. The Veteran's service-connected disabilities do not cause him to be unemployable. CONCLUSIONS OF LAW 1. Prior to September 22, 2020, the criteria for a rating of 20 percent, but no more, for the service-connected thoracic spinal disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242 (2019). 2. From September 22, 2020, the criteria for a rating in excess of 40 percent for service-connected thoracic spinal disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242. 3. The criteria for an initial evaluation in excess of 10 percent for service- connected right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to October 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2015 hearing. These issues were previously before the Board in December 2015 and May 2018, when they were remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board finds there was substantial compliance with the May 2018 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The May 2018 Board remand instructed the RO to readjudicate a previously denied claim for service connection for a low back disability, to obtain and associate with the claims file any outstanding VA treatment records, and to provide the Veteran with a new VA examination. Additional VA treatment records were successfully added to the claims file in May and June 2018, August 2019, April and July 2020, and January 2021. The Veteran underwent a new VA examination in September 2020. And in a January 2021 rating decision, the RO granted service-connection for a lumbar spinal disability and combined it with the service-connected thoracic spinal disability on appeal. The Board notes that they are rated together. The Board also notes that this decision does not address period during the grant of the temporary total evaluation of 100 percent for the spinal surgery convalescence in 2018, as that is also not on appeal. The January 2021 rating decision also granted TDIU effective April 1, 2020; however, the appeal period prior to that date is still in question. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Here, the Veteran filed an increased rating claim in May 2012 for the service-connected thoracic spinal disability. Accordingly, the Board will consider evidence from May 2011 to the present. 1. Entitlement to an increased evaluation for a service-connected thoracic spine disability The Veteran asserts that he is entitled to a higher rating for his service-connected thoracic spinal disability because the pain has gotten worse, and that he cannot stand or sit for long periods of time without changing positions. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in a non-arthritis context, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, a diagnosis of IVDS was found during the October 2016 private examination; however, the Veteran did not experience incapacitating episodes in the 12-month period prior to the examination, and therefore a separate rating for IVDS is not warranted. Prior to September 22, 2020 The Veteran underwent VA examinations in May 2015, September 2016, and September 2020. He also submitted private treatment records (PTRs) that provide some insight into severity of the service-connected thoracic spinal disability. Numerous VA treatment records also discuss the back pain, including two periods where the Veteran underwent spinal surgery; however, they do not provide any additional insight into the severity of the disability. April 2012 PTRs show range of motion (ROM) testing showed flexion limited to 45 degrees with tightness, extension to 20 degrees, right lateral flexion limited to 20 degrees, and left lateral flexion limited to 20 degrees; however, this examination did not include lateral rotation testing, so a combined ROM cannot be determined for rating purposes. In a June 2012 letter, the Veteran's representative asserted that the back was painful after sitting for long periods of time, and his doctor told him that he was no longer capable of continuing his career path. They also stated that the Veteran underwent physical therapy and injections to relieve the pain. July 2014 PTRs indicate that the thoracic spine demonstrated normal ROM on all planes, but they did not provide any specific values, and they did not explain what they considered to be normal ROM, so this cannot be used to determine the severity of the disability. The examination also noted a positive straight leg raise test, tenderness to palpation, normal motor test. The examiner opined that the Veteran had limited ability to perform tasks of a laborious nature, such as lifting, carrying, handling heavy weight, ambulating extended distances, frequently climbing stairs or ladders, frequently bending or twisting, or standing for extended periods of time. The examiner also opined that the Veteran was not limited in ambulating moderate distances or standing or for moderate periods of time. The Veteran underwent a VA examination in May 2015 where the examiner found diagnoses of degenerative arthritis of the spine, IVDS, spinal stenosis, and a resolved thoracic vertebral fracture. There, the Veteran reported that he has low back pain that feels like sitting on a sharp objects on the tail bone, that it was hard to stand back up, and that he had numbness in the left leg and heel of the left foot. He asserted that if sitting for a prolonged period, he got pain in both legs from the back, but that the left was worse than the right. He explained that he had to get up and change positions frequently. He also stated that epidural cortisone injections and pain medication did nothing to help. Initial ROM testing demonstrated flexion limited to 75 degrees, extension limited to 30 degrees, right lateral flexion limited to 24 degrees, left lateral flexion limited to 15 degrees, right lateral rotation limited to 15 degrees, and left lateral rotation limited to 15 degrees. The examiner noted that pain, and not ROM, contributed to functional loss. Pain was exhibited on forward flexion, left lateral flexion, and left lateral rotation. There was no pain on weight-bearing, and no evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least 3 repetitions, but there was no additional loss of function or ROM. The Veteran was not examined immediately after repetitive use over time, or a flare-up, and the examiner opined that they were unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during a flare-up because they would need to be present during those moments. They did not provide any estimations. The Veteran did, however, assert that flare-ups occurred a few times a week and missed work, but was unable to give objective examples of any change from baseline daily conditions. The examiner found localized tenderness or guarding not resulting in abnormal gait or contour. Muscle strength testing was normal, except for active movement against some resistance in the left knee on extension. There was no muscle atrophy. Reflex exam results were normal, except for a hypoactive left knee. The sensory exam was normal. On straight leg raise testing, the right was negative, and the left was positive. There was no ankylosis. While the Veteran asserted episodes of acute signs and symptoms due to IVDS that required best rest in the last 12 months, there was no documentation that these were prescribed by a physician. The examiner opined that there would be functional impact on any occupation which required prolonged sitting or standing in place, lifting more than 20 pounds, reaching overhead to retrieve, or walking or uneven ground. The examination did not discuss non-weight bearing, or passive motion. At the October 2015 Board hearing, the Veteran asserted that he had upper back pain that stiffens up and affected everything. He stated that the lower back was very uncomfortable, and very painful at times. The Veteran explained that he could not sit for more than 30 minutes before needing to change positions, and that it felt like sitting on something sharp. He stated that the pain went right up the spine the longer he sat. The Veteran explained that he walked with a cane and could walk for 30 to 45 minutes with use of the cane. He also stated that when his back was painful, his legs became weak, with the left worse than the right, and he sometimes fell. The Veteran explained that if sitting for a while, he might need help getting out of chairs, and that he could not go shopping except for one or two items before needing to rest. The Veteran also stated that it took a very long time to clean the house, and he limited how much he could carry. The Veteran underwent a September 2016 VA examination where the examiner found diagnoses or degenerative arthritis of the spine, IVDS, vertebral fracture, neurologic claudication, status post lumbar laminectomy with foraminotomy, and compression defect of the thoracic spine. The Veteran reported pain occasionally between the shoulder blades, and that lower back pain was a constant problem. He asserted that he missed 20 days of work in the last year due to upper back pain, which is at a 1 out of 10 at a baseline, and a 6 or 7 out of 10 during a flare-up. He described the pain as dull, achy. The examiner also made a contradictory statement that there were no reported flare-ups for thoracic upper back pain. Initial ROM testing demonstrated forward flexion to 35 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees, for a combined ROM of 90 degrees. There was pain on weight-bearing, and pain across the entire bilateral lumbar spine. The Veteran was able to do repetitive use testing with at least 3 repetitions, but there was no additional loss of function or ROM. The examiner did not provide any information regarding repeated use over time. The examination was not conducted during a flare-up, and the examiner noted that it was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups. They declined to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because they would be unable to say without mere speculation. The examiner did not provide any other explanation. The examiner noted there was no muscle spasm or guarding, but that localized tenderness resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was normal except for left knee extension which had active movement against some resistance. There was no muscle atrophy. Reflex testing was hypoactive on the right, and absent on the left. Sensory testing showed the upper anterior thigh normal bilaterally, the thigh and knee normal on the right and decreased on the left, the lower leg and ankle decreased on the right and absent on the left, and the feet and toes normal on the right, and absent on the left. Straight leg testing was negative bilaterally. There was no ankylosis. While the Veteran asserted episodes of acute signs and symptoms due to IVDS that required best rest in the last 12 months, there was no documentation that these were prescribed by a physician. The Veteran regularly used a cane. The examiner determined that there was functional impact on any occupation that requires long sitting or standing, or working on uneven ground. The examination did not discuss non-weight bearing, or passive motion. The Board finds that an increased evaluation for service-connected thoracic spinal disability is warranted for the period prior to September 22, 2020. Although the May 2015 VA examination demonstrated forward flexion to 75 degrees, the April 2012 PTRs showed flexion to 45 degrees, and the September 2016 VA examination demonstration forward flexion to 35 degrees, with a combined ROM of 90 degrees. Thus, and resolving all doubt in favor of the Veteran, the findings more nearly approximate forward flexion greater than 30 degrees but not greater than 60 degrees, and a combined ROM of not greater than 120 degrees, so a 20 percent evaluation is supported. At no point, however, has the evidence of record demonstrated forward flexion limited to 30 degrees or less prior to September 22, 2020, or favorable ankylosis of the thoracolumbar spine. Regarding additional functional loss, the Veteran has increased pain while sitting or standing for prolonged periods of time. Throughout the appeal period, VA examinations showed that flare-ups did cause additional limitation of function; however, even considering functional limitations, it does not more nearly approximate flexion limited to 30 degrees or ankylosis. Thus, additional functional impairment does not support a higher evaluation. See 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. 202. Accordingly, an evaluation in excess of 20 percent is not for assignment prior to September 22, 2020. The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit an even more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From September 22, 2020 The Veteran underwent a September 2020 VA examination where the examiner found diagnoses of degenerative arthritis of the spine, spinal fusion, IVDS, status post laminectomy, bilateral left lower extremity radiculopathy, thoracic strain, and degenerative disc disease. The Veteran reported only being able to sit for 30 minutes at a time without causing extreme pain. He stated that bending is very limited, and has problems stretching. The Veteran reported flare-ups that are severe and last seconds to two minutes, precipitated by sitting or standing for long periods. He stated that the flare-ups are alleviated by rest, or massage. Initial ROM testing demonstrated forward flexion limited to 50 degrees, extension limited to 5 degrees, right lateral flexion limited to 15 degrees, left lateral flexion limited to 10 degrees, right lateral rotation limited to 15 degrees, and left lateral flexion limited to 15 degrees, for a combined ROM of 110 degrees. Pain was noted on exam on all planes and on weight-bearing, but it did not cause functional loss. There was no localized tenderness or pain on palpation. The Veteran was able to do repetitive use testing with at least 3 repetitions, but there was no additional loss. The Veteran was not observed immediately after repetitive use over time, but the examiner estimated ROM with forward flexion limited to 40 degrees, extension limited to 10 degrees, right lateral flexion limited to 10 degrees, left lateral flexion limited to 10 degrees, right lateral rotation limited to 10 degrees, and left lateral rotation limited to 10 degrees, for a combined ROM of 90 degrees. The Veteran was not observed during a flare-up, but that pain would cause functional loss. The examiner estimated ROM with forward flexion limited to 30 degrees, extension limited to 5 degrees, right lateral flexion limited to 10 degrees, left lateral flexion limited to 10 degrees, right lateral rotation limited to 10 degrees, and left lateral rotation limited to 10 degrees, for a combined ROM of 75 degrees. There was no guarding or muscle spasms. On muscle strength testing, the right was normal except for hip flexion which had some active movement against some resistance. The left was abnormal, with active movement against some resistance on all motions. Reflex testing showed a normal right knee, and a hypoactive left knee. Sensory testing on the right, the upper anterior thigh was normal, the thigh and knee, the lower leg and ankle, and feet and toes were decreased. On the left, the upper anterior thigh was normal, the thigh and knee and lower leg and ankle were decreased, and the feet and toes were absent. Straight leg testing was positive bilaterally. There was no ankylosis. Although IVDS was present, the Veteran had no periods of bed rest in the last 12 months. The Veteran did not use assistive devices. There was evidence of pain on passive ROM testing, and non-weight bearing testing. The Board finds that an increased evaluation for service-connected thoracic spinal disability is not warranted for the period from September 22, 2020. During this appeal period, the only ROM testing showed forward flexion at 30 degrees during a flare-up, supporting a 40 percent evaluation. At no point, however, has there been unfavorable ankylosis of the thoracolumbar spine, or of the entire spine, so a higher rating is not supported. Regarding additional functional loss, as noted above, the Veteran has increased pain while sitting or standing for prolonged periods of time. Throughout the appeal period, VA examinations showed that flare-ups did cause additional limitation of function; however, even considering functional limitations, it does not more nearly approximate ankylosis. Thus, additional functional impairment does not support a higher evaluation. See 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. 202. Accordingly, an evaluation in excess of 40 percent is not for assignment from September 22, 2020. The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit an even more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an evaluation in excess of 10 percent for service-connected right lower extremity radiculopathy The Veteran's lower extremity radiculopathy is evaluated at 10 percent disabling, which contemplates mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Disability evaluations of 20 percent and 40 percent are assignable for incomplete paralysis which is moderate or moderately severe in degree, respectively. A 60 percent evaluation is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, 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. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The Veteran underwent VA examinations in May 2015, September 2016, and September 2020. A May 2015 VA peripheral neuropathy examination found no peripheral neuropathy, although there was lower extremity radiculopathy due to back compression. On a separate May 2015 VA spinal examination, the examiner found radiculopathy bilaterally. On the right, there was mild constant pain, mild intermittent pain, moderate paresthesias and/or dysesthesias, and no numbness. There were no other signs or symptoms of radiculopathy. The examiner opined the right lower extremity radiculopathy was of mild severity. At the October 2015 Board hearing testimony, the Veteran reported that he had a pins and needles sensation in his feet, and that when his back bothered him, his feet would start to go numb. He also indicated that he had issues with falling down. February 2016 VA treatment records following spinal surgery note that the radiculopathy was worse than on the left. There was paresthesias on the bottom of the left foot, and a little on the right foot. The Veteran reported a burning shooting sensation, more on the left than the right. The Veteran underwent a September 2016 VA spinal examination where the examiner found radiculopathy bilaterally. On the right there was moderate constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and no numbness. There were no other signs or symptoms of radiculopathy. The examiner opined the right lower extremity radiculopathy was of mild severity. March 2020 VA treatment records indicate an increase in radiating pain in the bilateral lower extremities, with muscle cramping in the calves occurring more frequently. The Veteran reported the leg pain was worse with activity. The Veteran underwent a September 2020 VA spinal examination where the examiner found radiculopathy bilaterally. On the right, there was no constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner opined the right lower extremity radiculopathy was of mild severity. The Board finds that the Veteran's right lower extremity radiculopathy is manifested by mild incomplete paralysis and thus no higher evaluation is warranted. The objective evidence of record indicated that the symptoms were more severe in the left than the right, with constant pain ranging from none to moderate, intermittent pain ranging from mild to moderate, mild to moderate paresthesias and/or dysesthesias, and numbness ranging from none to moderate. Additionally, the VA examiners consistently indicated the bilateral radiculopathy was manifested by mild incomplete paralysis of the sciatic nerve. Notably, each VA examiner determined the Veteran's radiculopathy was not manifested by any other signs or symptoms. Accordingly, an evaluation higher than 10 percent for the right and left leg radiculopathy is not warranted. 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, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Entitlement to TDIU prior to April 1, 2020 As noted above, the Veteran was granted TDIU from April 1, 2020 in a January 2021 rating decision. Thus, the Board must consider whether an extraschedular TDIU is warranted for the period prior to April 1, 2020. The Veteran contends that his spinal disabilities forced him to retire from his career as a truck driver, and accordingly he should receive a TDIU. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such 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. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). For the period prior to January 26, 2015, service connection was in effect for the following disabilities: degenerative changes of the thoracic and lumbar spine, hiatal hernia, radiculopathy of the bilateral lower extremities, and carpal tunnel syndrome (CTS). For that time period, the Veteran's combined disability evaluation is 60 percent, based in part, on the bilateral factor. Thus, the percentage requirements for a TDIU are not met because while the Veteran had two or more service-connected disabilities, none of which were rated as at least 40 percent disabling, and his combined disability evaluation was not at least 70 percent. 38 C.F.R. § 4.16 (a). For the period prior to April 1, 2020, service connection was in effect for the following disabilities: degenerative changes of the thoracic and lumbar spine, hiatal hernia, radiculopathy of the bilateral lower extremities, CTS, and abdominal scars. For that time period, the Veteran's combined disability evaluation was 70 percent, considering the bilateral factor. The percentage requirements for a TDIU are not met, however, because while the Veteran had two or more service-connected disabilities, none were rated as at least 40 percent disabling. 38 C.F.R. § 4.16 (a). In a May 2012 statement, the Veteran asserted that his doctor told him he should no longer work due to his back. May 2012 VA vocational rehabilitation records indicate that the Veteran was employed as a truck driver, and had previously worked construction, but could no longer do all that work due to his back and knee pain. The Veteran continued to seek vocational rehabilitation counseling through VA. In May 2017, he obtained a bachelor's degree in construction management, design engineering, and construction technologies, with an associate degree in general studies. In September 2017, a vocational rehabilitation case manager found that the Veteran has the required skills, was capable of performing duties of, was socially competent to maintain himself in a work environment, was ready to begin job search, and has current resume to work in construction management technology. In 2018, the Veteran ultimately opted to no longer participate in the vocational rehabilitation program due to medical difficulties. He did not actively participate in job search activities. A May 2015 VA back examination was conducted. The Veteran reported the last 13 years he was driving a truck and is now back in school. He stated that trucking regulations changed which did not favor rest stops which he needed for his back. In 20134, he returned to voc-rehab. The examiner opined that the back condition would compromise any occupation that required prolonged sitting in place, standing in place, lifting more than 20 pounds, reaching overheard to retrieve, or walking over uneven ground. Although the Veteran asserts unemployability, various records indicate that the Veteran has continued to work throughout the appeal period. July 2015 VA treatment records indicating that the Veteran was a full-time student, and did remodeling part-time. August 2015 VA records note that the Veteran may return to previous employment without restrictions. On his February 2016 TDIU application, the Veteran noted that he did part-time maintenance work, and that he was not in school due to back surgery. On his April 2016 TDIU application, the Veteran noted that he did maintenance and repair work, and earned $8,488 the prior year. The Veteran submitted a copy of his resume in January 2017 indicating that he was still truck driving. March 2018 vocation rehabilitation records note that the Veteran reported that he did not feel he could sustain a job if offered one due to his back problems. April 2018 vocational rehabilitation records note that the Veteran had stopped looking for employment due to medical reasons. August 2019 VA treatment records indicate that the Veteran was employed as a carpenter, and injured his fingers on a table saw. February 2020 VA treatment records note that the Veteran was looking for work in construction management. On balance, the Board finds that the evidence of record does not demonstrate unemployability in the years prior to 2020 and thus referral for an extraschedular TDIU is not warranted. The Veteran's work experience is in trucking, which would be difficulty with the Veteran's service-connected conditions, but he earned a bachelor's degree in 2017. This enables the Veteran to have more options in employment and also indicates that the Veteran was able to sit in class, engage in learning, complete assignments and other educational requirements, and generally perform educational studies that met the criteria for graduation. These are clear transferable skills to many occupations, to include those of construction management. During the relevant time period, he sporadically worked although the results of that employment are not substantially gainful employment, it demonstrates an ability to obtain employment and/or operate in work settings. On balance, the evidence of record does not demonstrate the Veteran's service-connected disabilities cause unemployability prior to April 2020. Accordingly, referral for extraschedular TDIU is not warranted. K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.