Citation Nr: 21031146 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-35 817 DATE: May 20, 2021 ORDER Entitlement to service connection for attention deficit hyperactivity disorder, to include as secondary to the service-connected mental disability, is denied. Entitlement to a disability rating higher than 10 percent for the service-connected thoracolumbar spine disability, is denied. Entitlement to a disability rating higher than 10 percent for the service-connected right lower extremity radiculopathy is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is denied. FINDINGS OF FACT 1. Attention deficit hyperactivity disorder is not related to service or to a service-connected disability. 2. The service-connected thoracolumbar spine disability is manifested by painful motion with forward flexion that exceeded 60 degrees and combined range of motion that exceeded 120 degrees, and without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. The service-connected right lower extremity radiculopathy is manifested by mild incomplete paralysis of the sciatic nerve. 4. The Veteran has multiple service-connected disabilities with a combined rating of 70 percent. 5. The Veteran's service-connected disabilities have not rendered him/her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for attention deficit hyperactivity disorder are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2021). 2. The criteria for a disability rating higher than 10 percent for the service-connected thoracolumbar spine disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2021). 3. The criteria for a disability rating higher than 10 percent for the service-connected right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2021). 4. The criteria for TDIU are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from February 1992 to October 1993 and from April 1999 to June 2000. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran did not report for a Board hearing that was scheduled to be conducted in May 2018. Because the Veteran has neither submitted good cause for failure to appear or requested to reschedule the hearing, the request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (failure to appear for a scheduled hearing treated as withdrawal of request). In August 2018 and September 2020, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board finds that its remand instructions were substantially complied with. The agency of original jurisdiction requested and obtained VA treatment records from October 2010 to the present, including VA treatment records from St. Petersburg (Bay Pines) VA Medical Center prior to September 2018; scheduled the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected lower back disability and lower extremity radiculopathy; and scheduled the Veteran for an examination by an appropriate clinician to determine the nature and etiology of her attention deficit disorder. In April 2021, the Veteran's representative agreed that all remand directives had been met (Record 04/08/2021). See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand). The issue of TDIU entitlement was not separately appealed but is being considered here as a component of the increased rating claims in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). Service ConnectionLaw and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for attention deficit hyperactivity disorder. The Veteran is seeking service connection for attention deficit hyperactivity disorder on the basis that it is proximately due to, a result of, or aggravated by her service-connected mental disability. The Veteran has not asserted that attention deficit hyperactivity disorder is directly related to service. Outpatient treatment records reveal that, while the Veteran was generally noted to have normal or good attention and concentration on examination (Record 02/07/2011), she has been diagnosed with adult attention deficit hyperactivity disorder. A February 11, 2010, outpatient note reveals the examiner's notation that the Veteran gives several classic symptoms of attention deficit hyperactivity disorder including inattentiveness dating back at least into early childhood (Record 02/07/2011 at 103). An October 13, 2010, outpatient note reveals "lifelong" trouble with focusing, which "hindered school and work performance by her account, but did not prevent her from getting a BS in biology." It was noted that she was diagnosed with attention deficit hyperactivity disorder that year (Record 02/07/2011 at 11). A VA examination in December 2020 reveals diagnoses of posttraumatic stress disorder (PTSD), major depressive disorder, and attention deficit hyperactivity disorder. The effects of these diagnoses could not be differentiated (Record 12/14/2020). The examiner opined that condition claimed was less likely than (less than 50 percent probability) proximately due to, a result of, or aggravated by the service-connected mental disability. Regarding causation, the examiner opined that the symptoms of the diagnosed attention deficit hyperactivity disorder predated the onset of depressive and trauma related symptoms for which the claimant is service connected. Per the typical course of the disorder and the claimant's self-report, her symptoms of attention deficit hyperactivity disorder onset in childhood, well before her military service. As such, the claimed condition is less likely than not proximately due to her major depressive disorder or PTSD (Record 12/14/2020). Regarding aggravation, the rationale was that the Veteran reported she continues to experience similar symptoms associated with attention deficit hyperactivity disorder at present as she did as a youth, generally. She said her periods of distraction are now longer, but also reported she no longer struggles with excess energy levels that result in difficulties. Thus, some symptoms have improved while others have marginally worsened. Notably, this is not an uncommon course for attention deficit hyperactivity disorder, as it does typically minimally alter the precise manifestation in adults, related to developmental maturity and management. It is not clear that the claimant's difficulties with attention and concentration have been altered or worsened in any significant way after her service connected conditions onset. Rather, the same or a very similar symptom set as initially manifested during childhood has continued. As such, the opinion is that the claimed condition is less likely than not aggravated beyond its natural progression by her service connected condition. (Record 12/14/2020). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for attention deficit hyperactivity disorder are not met, either by secondary causation or aggravation. The Board notes that the rating schedule for mental disabilities specifically contemplates symptomatology associated with attention deficit hyperactivity disorder. The schedule contemplates impairments in memory, thinking, concentration, work, and school performance. By establishing one general formula to be used in rating more than 30 mental disorders, the VA Secretary anticipated that any list of symptoms justifying a particular rating would, in many situations, be either under- or over-inclusive. Moreover, the evidence considered in determining the level of impairment under the rating schedule is not restricted to the symptoms provided in the diagnostic codes. Accordingly, as there is no evidentiary basis to distinguish such symptoms from the service-connected mental disability, the Veteran's attention deficits would be considered as a component of the already service-connected mental disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). Thus, a separate rating could not be assigned consistent with the principals endorsed in the General Rating Formula for Mental Disorders. The Veteran appears to concede that her attention deficit hyperactivity disorder predated service, and she seeks service connection on the basis of secondary aggravation. However, the December 2020 opinion is persuasive evidence that any change in the manifestations of attention deficit hyperactivity disorder between service and present are consistent with the expected development of the disorder and do not represent true worsening. As there has been no worsening, there can be no aggravation. There is no medical opinion that purports to relate attention deficit hyperactivity disorder to the service-connected mental disability. The medical opinion evidence is against this asserted relationship. Indeed, the Veteran has reported that her symptoms of attention deficit hyperactivity disorder have been lifelong, and have existed since childhood. To the extent they conflict with her assertions to medical providers that her attention deficit hyperactivity disorder is a lifelong problem, the Board has considered the Veteran's lay statements regarding etiology. However, relating current mental symptomatology to a separately diagnosed mental disability is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). The issue is medically complex, as it requires knowledge of the causes and contributors to mental and attention disorders. Such an opinion is not capable of lay observation. Accordingly, the Veteran's lay statements are unpersuasive as to an etiologic relationship between the claimed attention deficit hyperactivity disorder and the service-connected mental disability. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In sum, the Board finds that the claimed attention deficit hyperactivity disorder is not related to a service-connected disability, and is not otherwise related to service. In light of these findings of fact, the Board concludes that service connection for the claimed attention deficit hyperactivity disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased RatingsLaw and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating higher than 10 percent for the service-connected thoracolumbar spine disability. Entitlement to a disability rating higher than 10 percent for the service-connected right lower extremity radiculopathy. In a January 2002 rating decision, VA granted service connection for a neurological disability of the right lower extremity and assigned an initial disability rating of 0 percent under Diagnostic Code 8599-8520, effective June 2, 2000. In a September 2002 rating decision, the disability rating was increased to 10 percent, effective June 2, 2000. In a February 2008 rating decision, VA granted a separate rating for a low back disability and assigned a rating of 0 percent under Diagnostic Code 5243, effective January 24, 2007, and a rating of 10 percent from November 17, 2007. The current appeal arises from an increased rating claim received at VA on September 30, 2010. Effective February 7, 2021, degenerative arthritis, and degenerative disc disease other than intervertebral disc syndrome are to be rated under Diagnostic Code 5242. A rating under Diagnostic Code 5243 for intervertebral disc syndrome is only to be assigned when there is disc herniation with compression of the adjacent nerve root. See 85 Fed. Reg. 76464 (Nov. 30, 2020). These changes do not affect the ratings assigned, but simply affect the diagnostic code to be assigned. All disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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. A rating of 100 percent requires unfavorable ankylosis of the entire spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 40 percent requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A rating of 20 percent requires 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. A rating of 10 percent is assigned with 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. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2) (See also Plate V). Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Neuritis, cranial or peripheral, 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. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. Under Diagnostic Code 8520, an 80 percent rating is available for complete paralysis of the sciatic nerve such that the foot dangles and drops, there is no active movement possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost. A 60 percent rating is available for incomplete paralysis of the sciatic nerve that is severe, with marked muscular atrophy. A 40 percent rating is available for incomplete paralysis of the sciatic nerve that is moderately severe. A 20 percent rating is available for incomplete paralysis of the sciatic nerve that is moderate. A 10 percent rating is available for incomplete paralysis of the sciatic nerve that is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A September 26, 2011, MRI of the lumbar spine reveals degenerative disc disease and facet degenerative change at L4-5 and L5-S1 with right L4-5 annular tear and very small right foraminal disc protrusion (Record 06/11/2012 at 11). A May 30, 2012, outpatient treatment note reveals the Veteran's complaint that musculoskeletal pain has become severely intense. She has been having severe back pain (Record 06/11/2012 at 5). An October 10, 2012, VA Primary Care Note reveals pain is particularly severe in the neck and lumbar region (Record 09/07/2020 at 37). A VA examination of the low back in May 2011 reveals complaint of limitation in walking. The Veteran reported that, on average, she can walk 1 mile. This takes 35 minutes to accomplish. She has experienced falls due to the spine condition. Symptoms include stiffness, fatigue, spasms, decreased motion, paresthesia and numbness. She reported weakness of the spine, leg and foot. She reported bowel and bladder problems, but does not experience incontinence. She reported slight fecal leakage that occurs less than 1/3 of the day. Back pain occurs constantly. The pain travels to down the outside of the right leg and foot, up the hip to the side, right leg. The level of pain is moderate. The pain can be exacerbated by physical activity. At the time of pain she can function with medication. During flares she experiences functional impairment which is described as pain, weakness, incoordination, speed and limitation of motion of the joint, which is described as short stride, slow movement. Her condition, in the past 12 months, had not resulted in any incapacitation. She reported that she cannot sit for longer than 15 minutes without pain, cannot stand for longer than 15 minutes without pain, cannot drive longer than 15 minutes without becoming stiff, and cannot lay down on the right side. On examination, the Veteran had a stumbling gait and posture. She does not require any assistive device for ambulation. There was no evidence of radiating pain on movement. Muscle spasm was absent. There was tenderness noted on examination, described as on palpation. Spinal contour was preserved, though there was tenderness. There was no guarding of movement. The examination did not reveal any weakness. Muscle tone was normal. Musculature was normal. There was negative straight-leg-raising on the right. There was no atrophy present in the limbs. There was no ankylosis of the thoracolumbar spine. Range of motion testing revealed flexion from 0 to 90 degrees initially (normal), with onset of pain at 90 degrees, and without change after 3 repetitions. Extension was from 0 to 30 degrees (normal) with onset of pain at 30 degrees and without change after 3 repetitions. Lateral flexion and rotation were from 0 to 30 degrees bilaterally, with onset of pain at 30 degrees, and with no change after 3 repetitions. The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. The effect of the condition on the Veteran's usual occupation consisted of pain and difficulty ambulating. The effect of the condition on daily activity was pain and difficulty walking and ambulating (Record 05/29/2011). The lumbar spine sensory function was impaired. The sacral spine sensory function was impaired. The modalities used to test sensory function was a pin prick. There was no lumbosacral motor weakness. There was a sensory deficit of the right front leg and right medial leg, as well as the right lateral leg and right lateral foot. The right lower extremity reflexes were 2+ at knee jerk and ankle jerk. The examination revealed normal cutaneous reflexes. There were signs of lumbar intervertebral disc syndrome. The most likely peripheral nerve was the sciatic nerve. The intervertebral disc syndrome did not cause any bowel dysfunction and bladder dysfunction. There were no non-organic physical signs. The effect of the condition on the Veteran's usual occupation consisted of pain and difficulty ambulating. The effect of the condition on daily activity was pain and difficulty walking and ambulating (Record 05/29/2011). A VA examination of the back in January 2021 reveals a diagnosis of lumbar degenerative disc disease. Flares of the back occur 1-2 times a week. The back flares are severe and last 1 day. They are precipitated by overuse. The Veteran reported: "I have a hard time bending over because it hurts my back." She reported: "I can't lift more than about 10lbs without hurting my back." She also reported: "I can't go grocery shopping because things are too heavy." On examination, active range of motion was measured to 90 degrees flexion, 30 degrees extension, 20 degrees lateral flexion, bilaterally, and 30 degrees lateral rotation, bilaterally. Passive range of motion was the same as active range of motion. Passive range of motion elicited pain on lateral flexion. There was no additional limitation of motion after 3 repetitions. With repeated use over a period of time, and/or with flares, forward flexion would be reduced to 85 degrees, extension to 25 degrees, lateral flexion to 15 degrees, bilaterally, and rotation to 25 degrees, bilaterally. There was no localized tenderness, guarding or muscle spasm of the thoracolumbar spine. Muscle strength in the lower extremities was full without atrophy. Reflexes were normal in the lower extremities. Sensation was decreased. Straight-leg raise testing was normal. The examiner assessed mild intermittent pain, paresthesias/dysesthesias, and numbness. There were no other symptoms of radiculopathy. The disability was assessed overall as mild incomplete paralysis. There was no ankylosis. There were no other associated neurological abnormalities. The examiner found that the Veteran does not have intervertebral disc syndrome. She required no assistive devices. The effect on employment was that the Veteran was unable to complete work related tasks requiring her to repetitively bend or lift more than 20 pounds due to her back condition (Record 01/21/2021). There were no painful scars, unstable scars, scars with underlying tissue damage, or scars causing limitation of function (Record 01/21/2021). After a review of all of the evidence, the Board finds that the criteria for a disability rating higher than 10 percent are not met either for the service-connected low back disability, or for the service-connected right lower extremity radiculopathy. To warrant the next higher rating of 20 percent for the low back disability, the evidence would have to substantiate that forward flexion is not greater than 60 degrees; or, that combined range of motion is not greater than 120 degrees. A 20 percent rating can also be substantiated by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Here, testing of range of motion of the thoracolumbar spine has consistently shown range of forward flexion that exceeds 60 degrees, even after repetitive use, during flares, and with repetitive use over a period of time. Moreover, muscle spasms and/or guarding are not shown to be severe enough to result in an abnormal gait or abnormal spinal contour. Therefore, a rating higher than 10 percent is not warranted. As there are no period of incapacitation, and as the January 2021 examiner found that intervertebral disc syndrome is not present, there is no basis to assign an alternative rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Moreover, as there are no additional associated neurological abnormalities, there is no basis to assign any additional ratings on that basis. Regarding the right lower extremity radiculopathy, the January 2021 examiner assessed the condition as mild incomplete paralysis of the sciatic nerve. Accordingly, Diagnostic Code 8520 is the most appropriate diagnostic code to apply. That code provides a rating of 10 percent for mild incomplete paralysis. Therefore, a higher rating is not warranted. Finally, the Veteran's surgical scar is not shown to be painful or to have any characteristics that would support a separate compensable rating under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. In sum, the Board finds that the service-connected thoracolumbar spine disability is manifested by painful motion with forward flexion that exceeded 60 degrees and combined range of motion that exceeded 120 degrees, and without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Board also finds that the service-connected right lower extremity radiculopathy is manifested by mild incomplete paralysis. In light of these findings of fact, the Board concludes that a disability rating higher than 10 percent is not warranted for either the service-connected low back disability, or the service-connected right lower extremity radiculopathy. The Board further finds that no separate ratings are warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIULaw and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to her level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (Veterans Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Veterans Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Entitlement to TDIU. The agency of original jurisdiction denied entitlement to TDIU in December 2008. At that time, service connection was in effect for the same disabilities, with the same combined rating as now. The current appeal arises from rating claims received at VA on September 30, 2010. Service connection is in effect for a mental disability, rated at 50 percent, for temporomandibular joint dysfunction, rated at 30 percent, for right lower extremity radiculopathy, rated at 10 percent, and for a low back disability, rated at 10 percent. The combined disability rating is 70 percent since June 2, 2000. The Veteran reports that she became too disabled to work in May 2000. While she has reported employment since then, these jobs are listed as lasting a few days. She has experience in food service, massage, retail, dental hygiene, and as a medical laboratory technician. She reports a college education and a degree in biology (Record 01/24/2002),(Record 04/14/2008). The Veteran asserts that her anxiety, depression, mood swings, and avoidance behavior, combined with severe musculoskeletal pain, have rendered her unable to secure or follow a substantially gainful occupation. An October 13, 2010, psychiatric outpatient note reveals the Veteran's account that, after service, she had not been able to hold a job more than four months due to neck and back pain (Record 02/07/2011 at 12). A December 29, 2011, outpatient treatment note reveals the Veteran's description that she would like to return to work but finds this difficult due to her pain (Record 06/11/2012 at 34). A June 4, 2012, Dentistry Note reveals a problem list including severe anxiety and stress disorder (Record 09/07/2020 at 50). An April 7, 2018, VA Primary Care Note reveals the Veteran was unemployed due to chronic pain, fatigue, and carpal tunnel (Record 09/07/2020 at 28). An April 10, 2018, VA Mental Health Note reveals scores of severe depression and moderate anxiety (Record 09/07/2020 at 28). After a review of all of the evidence, the Board finds that the criteria for entitlement to TDIU are not met. While the schedular criteria for consideration of TDIU based on multiple service-connected disabilities are met, the evidence does not substantiate occupational impairment beyond the 70 percent combined rating currently assigned. The Veteran has demonstrated the ability to succeed in educational pursuits, as demonstrated in her obtaining a bachelor's degree. She has a broad base of knowledge and work experience. With respect to musculoskeletal pain, she is only service-connected for a low back disability. For purposes of consideration of TDIU, the Board is entitled to interpret the rating of 10 percent as reflective of the overall level of occupational impairment resulting from this condition. The same is true of her neurological disability. The Board may not consider the significant pain and impairments caused by her nonservice-connected cervical spine degenerative disc disease, bilateral knee disorders. Regarding the service-connected mental disability, the Board acknowledges that the disability causes significant occupational and social impairment. However, such impairment is reflected in the rating of 50 percent currently assigned. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) ("A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment"). Here, despite her service-connected disabilities, and in light of her eduction and work experience, the evidence demonstrates that the Veteran has significant skills that would enable her to obtain and retain substantially gainful employment. Therefore, the Board concludes that TDIU is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.