Citation Nr: 21030760 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 09-47 980 DATE: May 19, 2021 ORDER Entitlement to an effective date earlier than May 25, 2010 for the grant of service connection for radiculopathy of the left lower extremity is denied. Entitlement to an effective date earlier than May 25, 2010 for the grant of service connection for radiculopathy of the right lower extremity is denied. Entitlement to service connection for hypertension, to include as secondary to service-connected residuals, low back strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to June 22, 2012 is denied. FINDINGS OF FACT 1. VA received the Veteran's claim for service connection for radiculopathy in the lower extremities, secondary to his low back disability on May 25, 2010; mild peripheral neuropathy bilateral feet was first shown on VA examination dated in September 2010. 2. No formal or informal claim for service connection for bilateral lower extremity radiculopathy was received from the Veteran prior to May 25, 2010. 3. The Veteran's hypertension was not present during service, was not manifested to a compensable degree within one year of service separation and is not otherwise related to service or a service-connected disability. 4. During the period prior to June 22, 2012, the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than May 25, 2010 for the grant of service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 2. The criteria for an effective date earlier than May 25, 2010 for the grant of service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 3. The criteria for service connection for hypertension, to include as secondary to service-connected disabilities, including residuals of low back strain, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for a TDIU, prior to June 22, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1950 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008, May 2012, and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In March 2016, the Board remanded the issues of service connection for hypertension, earlier effective dates for peripheral neuropathy of the right and left lower extremities, and earlier effective date for the grant of a TDIU to the RO for evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in February 2019. In August 2019, the Board denied the claims for an effective date earlier than May 25, 2010 for the grant of service connection for radiculopathy of the right and left lower extremities. The Board remanded the issues of service connection for hypertension and an earlier effective date for a TDIU to the RO for evidentiary development. Following the requested development, an SSOC was issued in December 2019. In March 2020, the Board again remanded the issues of service connection for hypertension and an earlier effective date for a TDIU to the RO for further evidentiary development. Specifically, the Board remanded the claims to obtain the Veteran's Social Security Administration (SSA) records, obtain VA treatment records dated between October 2006 to June 2012 and obtain an etiology opinion regarding the Veteran's hypertension. Treatment records have been associated with the record and an August 2019 response from SSA indicates that there were no medical records associated with the Veteran. An etiology opinion for the Veteran's hypertension was obtained in August 2019. The Board determines that there has been substantial compliance with its previous remand. The Veteran appealed the August 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR) and vacated the Board's August 2019 decision with respect to its denial of an effective date prior to May 25, 2010 for the grant of service connection for radiculopathy of the right and left lower extremities, and remanded these matters back to the Board for additional development consistent with the JMPR. In November 2020, the Veteran's attorney requested that the Board wait the full 90 day period following certification before issuing a decision. The Board granted this request for an extension of time in a January 2021 letter. The Veteran's attorney then submitted additional argument in support of this appeal in January 2021. Effective Date The effective date of an award of disability compensation to a veteran will be the day following separation from active service or date entitlement arose if the claim is received within one year of separation from active service; otherwise, it will be the date of receipt of claim, or the date when entitlement arose, whichever is later. 38C.F.R. § 3.400(b)(2)(i). In general, "date of receipt" means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r). The effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found; but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). VA regulations provide that the effective date for increases shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of the claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of receipt of the claim. The law provides one exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). The regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). Prior to amendments to the applicable regulation in March 2015, a claim was "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1(p). A report of examination or hospitalization which meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a). Once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by uniformed services will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157(a), (b). When the following reports relate to examination or treatment of a disability for which service connection has previously been established, the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim and the date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(b)(1). A "report of examination or hospitalization" under § 3.157(b) should "indicate that [a] veteran's service-connected disability [has] worsened since the time it was last evaluated." Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term "report of examination" under § 3.157(b) "implies that the medical record in question must describe the results of a specific, particular examination." A letter may qualify if it, for instance, was "generated in connection with any particular VA medical examination" rather than, for example, a "claim for Social Security disability benefits that was pending at the time it was written." Massie, 25 Vet. App. At 133. Other considerations include whether the letter relates "the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation," rather than "present[ing] a very short summation of [the Veteran's general condition, as [the physician] had observed it over" time. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of doubt is afforded the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an effective date earlier than May 25, 2010 for the grant of service connection for radiculopathy of the left lower extremity 2. Entitlement to an effective date earlier than May 25, 2010 for the grant of service connection for radiculopathy of the right lower extremity The Veteran essentially contends that he is entitled to an earlier effective date for his award of service connection for radiculopathy of the right and left lower extremities prior to May 25, 2010. On May 25, 2010, the Veteran filed a supplemental claim for compensation (VA Form 21-526b), wherein he claimed an increased rating for his low back disorder; he also claimed service connection for radiculopathy as secondary to his service-connected low back strain. In a May 2012 rating decision, the RO granted service connection for peripheral neuropathy of the right and left lower extremity, assigning a zero percent rating for each leg effective May 25, 2010, the date of the claim. After reviewing both the law and the facts set forth above, the Board finds that an effective date prior to May 25, 2010 for the award of service connection for the Veteran's peripheral neuropathy of the right and left lower extremity is not warranted. Historically, service connection for a low back strain has been in effect since May 28, 1956. In December 1960, the RO granted an increased rating for the low back strain based on a November 1960 back examination finding of limitation of motion of the spine. At the time of the November 1960 examination, the Veteran complained of intermittent back pains that affect both of his legs; however, the examiner did not diagnose the Veteran with any neurologic abnormality. The Veteran did not appeal the December 1960 decision within one year and is therefore deemed final. See 38 U.S.C. § 7105. In February 1966, VA denied a claim for increased rating for his low back strain. A January 1966 VA back examination did not indicate any lower extremity neurological abnormalities that would trigger service connection under 38 C.F.R. § 4.71a. The Veteran did not appeal this decision within one year is therefore deemed final. In November 2002, the Veteran filed a claim for an increased rating for a low back strain. At that time, he reported having pain shooting down his legs. Submitted in support of the claim were private treatment report dated in November 2002, which noted a clinical finding of lumbar strain with radiculopathy. And, during a VA examination in April 2003, the Veteran reported pain in the lower back with some pain in the legs at times; however, it was noted that both lower legs were negative for any neurological deficiency, though the reflexes were rather diminished. The pertinent diagnosis was history of low back pain with subsequent treatment and medication; the examiner noted that there was continued low back pain with limited motion without any neurological deficits in the lower limbs. A rating action in May 2003, increased the rating for residuals of low back strain from 10 percent to 20 percent, effective November 15, 2002. The May 2003 decision did not service connect any lower extremity radiculopathy. Subsequent rating decisions in March and August 2004 confirmed the 20 percent rating for the low back strain. The Veteran did not appeal the decisions within one year and the decision is deemed final. See 38 U.S.C. § 7105. A rating action in November 2005 increased the rating for low back strain with degenerative disc disease from 20 percent to 40 percent, effective July 29, 2005. That decision was based on a VA examination in September 2005, which indicated that the Veteran complained of pain in the lower back which he described as constant and rated as a 7 on a scale of 0 to 10. The examiner noted that the Veteran used Tylenol for pain and noted that the pain did not radiate into the legs. The Veteran did not appeal the decisions within one year and the decision is deemed final. See 38 U.S.C. § 7105. As noted above, the Veteran filed the current claim for an increased rating for the low back strain in May 2010; he also claimed service connection for radiculopathy in the lower extremities, secondary to the low back strain. Submitted in support of the claim were VA progress notes dated from March 2010 to August 2010. Among the record was a primary care note, dated March 9, 2010, at which time the Veteran reported that he continued to have low back pain; he also reported pain radiating down his anterior thigh. The examiner indicated that the lower back had tenderness to palpation over the left posterior iliac crest. Examination of the lower extremities was normal; lower extremity strength was 5/5 and deep tendon reflexes were 2+. The assessment was spinal stenosis with an increase in his low back pain, albeit improved. In connection with his claim, the Veteran was afforded a VA examination of the spine in September 2010, at which time he complained of radiation of pain into the right thigh and across the left lower back. He was also afforded a VA peripheral nerves examination in September 2010 reported a diagnosis of mild peripheral neuropathy bilateral feet. In an addendum to the September 2010 examination, dated in February 2011, a VA examiner opined that the Veteran's peripheral neuropathy of the feet is at least as likely as not caused by or related to his lumbar spine degenerative disc disease. As such, by rating decision dated in May 2012, the RO granted service connection for peripheral neuropathy of the right and left lower extremity, assigning a zero percent rating for each leg effective May 25, 2010, the date of the claim. VA and treatment records dated prior to May 25, 2010 are negative for radiculopathy of the lower extremities. While a VA primary care note dated in March 2010 noted findings of tenderness to palpation over the left iliac crest and reported an assessment of spinal stenosis with an increase in the low back, albeit improved, there was no finding of radiculopathy or other nerve impairment at that time. Upon review of the above medical evidence, the Board finds that an effective date earlier than May 25, 2010 for the grant of service connection for radiculopathy of the lower extremities is not warranted. The earliest documentation of such in the claims file is the September 2010 peripheral nerves examination report, at which time mild peripheral neuropathy bilateral feet was noted. Private and VA clinical records dated prior to September 2010 are absent for any such findings. Accordingly, there is no evidence of bilateral lower extremity radiculopathy in the one-year period prior to May 25, 2010; in fact, entitlement did not arise until the September 2010 diagnosis. Under these facts, the appropriate effective date would be September 2010, i.e., the date entitlement arose, because it is later of the two dates. However, the Board will not disturb the current effective date that the RO has assigned which is May 25, 2010. Based on the foregoing, an effective date prior to May 25, 2010 for the grant of service connection for peripheral neuropathy of the right and left lower extremity cannot be assigned and the claim for such is denied. The Board notes that a physical examination was conducted and an assessment was made indicating worsening of his low back pain in a March 9, 2010 VA treatment note. However, there is no indication of intent to file a claim detailed in these treatment notes. The VA treatment notes did not indicate that the Veteran's sinusitis had worsened since it was last evaluated. Thus, the March 2010 VA treatment note cannot be considered an informal claim for benefits. Assuming arguendo that this March 2010 VA treatment note did constitute an informal claim, an earlier effective date would not be warranted. As discussed above, entitlement arose as of the September 2010 diagnosis in the peripheral nerve examination. In such instance, the appropriate effective date would be September 2010, i.e., the date entitlement arose, because it is later of the two dates. This argument is therefore without merit. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the current appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, including low back strain The Veteran contends that he developed hypertension as a result of his service-connected disabilities and the stress they have caused him. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection for certain chronic diseases, including hypertension, may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). After careful review of the evidentiary record, the Board finds that the evidence is against the claim for service connection for hypertension. Significantly, the service treatment records are negative for any clinical findings or diagnoses of hypertension. The first diagnosis of hypertension was in 2002, which is 48 years after active service. Hence, service connection is not warranted on a presumptive basis for a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The long period between service and the onset of hypertension is one factor that weighs against a finding of service incurrence, including by continuous symptoms since service from which service incurrence would be presumed. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Service connection also is not warranted on a direct basis or secondary basis, as there is no medical evidence of any in-service incurrence or relationship between hypertension and service and/or a service connected disability or disabilities. That is, while the records reflect that the Veteran has received ongoing clinical evaluation and treatment for hypertension, none of the medical providers, VA or private, has tied the currently diagnosed hypertension to an event, injury, or disease in service and/or a service connected disability or disabilities. In this regard, following a VA examination in January 2010, the examiner reported a diagnosis of hypertension with LV hypertrophy. The examiner stated that there is no evidence in the medical literature that tinnitus causes sustained hypertension. Subsequently, following a DBQ examination in February 2019, the examiner stated that hypertension was present during service; he noted that the Veteran reported a history of hypertension about 20 years after service and blood pressure readings in service were normal. The examiner further opined that hypertension was less likely as not caused or aggravated by the Veteran's service-connected hearing loss or tinnitus. The examiner explained that the medical literature showed no relationship between hearing loss and hypertension. The examiner further noted that although stress has some mention in the literature, the primary texts, such as up to date make no mention of it. Moreover, the examiner indicated that the Veteran did not endorse any particular stress related to hearing loss aside from some occasional frustration with the function of his hearing aids. The examiner stated that any causative relationship between hypertension and hearing loss and tinnitus is highly speculative. The examiner's opinion is probative, because it is based on an accurate medical history and provide an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In an addendum to the February 2019 medical opinion, dated in August 2019, the DBQ examiner opined that the Veteran's hypertension is less likely as not due to his service-connected low back strain. The examiner explained that the medical literature does not note back conditions such as arthritis or spinal stenosis as a cause of hypertension. The examiner noted that the claim revolved around stress due to back as related to the Veteran's blood pressure; he explained that there are no records supporting the Veteran's back condition specifically as a cause of stress. The examiner further opined that the Veteran's hypertension is less likely as not aggravated by his service-connected low back strain. The examiner noted that there is no evidence of aggravation as the Veteran's blood pressure is under satisfactory control. The examiner observed that there is a single mention that Veteran's blood pressure tends to be worse when he is under stress; however, there is no mention that his back condition is a specific stressor. The examiner also noted that the Veteran has multiple other nonservice-connected medical conditions and any or all could be stressors. The examiner referred to the Veteran's history of sleep apnea which is a known aggravator of blood pressure. The examiner again noted that aggravation of blood pressure by stress is mentioned in the literature but that there is no agreement on how to measure stress or how to determine degree of aggravation if any. The examiner concluded that the claim for aggravation falls well below the standard of at least as likely as not. In April 2020, the Veteran's claims file was referred to a DBQ examiner for an opinion as to whether the Veteran's hypertension is aggravated beyond its natural progression by his service-connected residuals of a low back strain with associated radiculopathy of the right and left lower extremities. Following a review of the file, the examiner opined that it is less likely than not that the Veteran's hypertension was aggravated beyond its natural progression by his service-connected low back strain with associated bilateral lower extremity radiculopathy. The examiner indicated that there is currently no medical rationale correlating the diagnosis of back injury with the development of hypertension. The examiner took note of a December 2012 VA cardiology note indicating that the Veteran's blood pressure had been very sensitive to emotional changes, anxiety and being in the clinic's office; however, he noted that the cardiology note does not address a low back condition and only addressed the fact that blood pressure had been sensitive in the clinic's office. The examiner indicated that no blood pressure readings were made available in the records provided for hypertensive episodes claimed when the Veteran was undergoing emotional changes, anxiety and being in the clinic's office. Since blood pressures weren't recorded for these episodes, it is less likely than not the hypertension was aggravated beyond its normal progression. The August 2019 and April 2020 opinions are probative because they are based on an accurate medical history and provide an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, supra. There is no contrary opinion of record. As such, no medical professional has ever related the Veteran's hypertension to his service-connected hearing loss, tinnitus, residuals of low back strain, or radiculopathy of the lower extremities. In the absence of competent and probative evidence that the Veteran's hypertension was either caused by or aggravated by his service-connected hearing loss, tinnitus, residuals of low back strain, or radiculopathy of the lower extremities, service connection is not warranted on a secondary basis and the claim must be denied. See 38 C.F.R. § 3.310. While the Veteran believes his hypertension is proximately due to his low back disability or other service-connected disabilities, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and an interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the February 2019, August 2019, and April 2020 DBQ/VA examinations. In summary, the weight of the evidence is against a finding that the Veteran's hypertension is etiologically related to a disease, injury, or event in service, and is against a finding that it was caused or aggravated by any of his service-connected disabilities, including tinnitus or residuals of a low back injury with associated radiculopathy of the right and left lower extremities; consequently, the claim must be denied. The preponderance of the evidence is against all theories of the claim; therefore, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 4. Entitlement to a TDIU prior to June 22, 2012 Awards of TDIU are governed, in part, by 38 C.F.R. § 4.16(a). Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, the disability must be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See also 38 C.F.R. §§ 3.340, 3.341. Furthermore, for the veteran to prevail on his claim for TDIU, the record must reflect that he is precluded from securing and following a substantially gainful occupation consistent with his education and occupational experience, due solely to his service-connected disabilities. The sole fact that the veteran claimant is unemployed or has difficulty obtaining or following employment is not enough. A disability 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 she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). Prior to June 22, 2012, the Veteran was service connected for residuals of low back strain with degenerative disc disease at multiple levels of the lumbar spine, rated as 40 percent disabling; radiculopathy of the right lower extremity, rated as 10 percent disabling; radiculopathy of the left lower extremity, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and residuals of left elbow dislocation, chronic rhinitis, and bilateral hearing loss, all rated as 0 percent disabling. The Veteran's combined rating is 60 percent from May 25, 2010 and 70 percent from June 22, 2012. Therefore, the Veteran does not meet the schedular requirements for TDIU prior to June 22, 2012. A total rating based on individual unemployability may still be assigned to a veteran who fails to meet these percentage standards if he or she is unemployable by reason of his or her service-connected disability(ies). 38 C.F.R. § 4.16(b). Here, on his TDIU application (VA Form 21-8940), dated May 2, 2011, the Veteran indicated that his service-connected disabilities, including his lumbar spine, high blood pressure and sleep apnea, prevented him from securing or following any substantially gainful occupation. He indicated that he became too disabled to work in 1996 and he left his last job because he could no longer perform his duties due to being disabled. The Veteran indicated that he last worked as the director of a hospital in 1995. In this case, the evidence does not show that the Veteran is precluded from employment by residuals of low back strain, radiculopathy of the right and left lower extremities, tinnitus, bilateral hearing loss, rhinitis, and residuals of left elbow dislocation prior to June 22, 2012. Significantly, during a VA examination in April 2003, the Veteran related that his activities of daily living were somewhat restricted due to increased low back pain. On examination in September 2005, the Veteran indicated that his sporting activities are affected; however, there was no history of acute episode of excruciating back pain during the last 12 months. During a January 2010 audiological evaluation, the examiner noted that the Veteran had difficulty with the television and telephone; however, he indicated that the hearing loss had no significant effects on occupation. Following the September 2010 DBQ examination for peripheral nerves, the examiner stated that the condition causes difficulty walking; with respect to the low back condition, the examiner stated that Veteran's back pain affects all activities of daily living. In a medical opinion, dated in April 2011, the DBQ examiner opined that the degenerative disc disease is likely to impact the Veteran's ability to obtain and maintain substantially gainful sedentary or physical employment as his lumbar range of motion is decreased and painful. In light of the foregoing, the Board finds that, prior to June 22, 2012, the preponderance of evidence is against a finding that the impairment resulting from the Veteran's residuals of low back strain, radiculopathy of the right and left lower extremities, tinnitus, and bilateral hearing loss prevented him from engaging in gainful employment. The Board finds the evidence of record shows that, prior to June 22, 2012, none of the examiners who conducted examinations in April 2003, September 2005, January 2010 and September 2010 suggested that the Veteran's disabilities were of such severity or reported functional impairments of such severity as to prevent him from engaging in gainful employment. While the examiners concluded that the low back disorder and associated radiculopathy in the lower extremities caused some functional impairment or limitations on employability, there was no finding that the Veteran's symptoms rendered him unable to maintain employment. (Continued on the next page) The Board does not doubt that the Veteran's service-connected disabilities had some impact on his employability. However, for the reasons set forth above, the preponderance of the evidence is against finding that prior to June 22, 2012 his service-connected disabilities were of such severity so as to preclude his participation in any form of substantially gainful employment. As such, the evidence does not persuasively support a finding that the Veteran was unable to obtain and maintain substantially gainful employment solely due to his service-connected disabilities. See 38 C.F.R. § 4.19. Neither referral for TDIU on an extraschedular basis or the grant of TDIU on schedular basis are warranted. Therefore, the weight of the probative evidence is against a finding that the Veteran's service-connected disabilities prevented him from working prior to June 22, 2012. The benefit-of-the-doubt rule does not apply and entitlement to TDIU prior to June 22, 2012 is denied. As the preponderance of the evidence is against the Veteran's claim, the doctrine of reasonable doubt does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.