Citation Nr: 21052392 Decision Date: 08/25/21 Archive Date: 08/25/21 DOCKET NO. 16-39 865 DATE: August 25, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a back condition is reopened. Service connection for a back condition as secondary to service-connected right leg sciatic neuralgia is granted. Subject to the laws and regulations governing the award of VA monetary benefits, an initial rating of 60 percent, but no more, for right leg sciatic neuralgia is granted. A total disability based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. In an unappealed July 2006 decision, the Board denied service connection for a back condition. 2. Evidence received since the July 2006 decision, namely lay testimony and a March 2021 private medical opinion, raise a reasonable possibility of substantiating the service connection claim for a back condition. 3. There is a balance of evidence as to whether the Veteran's back condition is the result of his service-connected right leg sciatic neuralgia. 4. The Veteran's right leg sciatic neuralgia has resulted in marked muscular atrophy with severe symptomology. 5. The Veteran's service-connected disabilities alone render him unable to obtain or maintain substantially gainful employment consistent with his education, training, and work history. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the Veteran's claim for entitlement to service connection for a back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a back condition as secondary to service-connected right leg sciatic neuralgia have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for an initial rating of 60 percent, but no more, for right leg sciatic neuralgia have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.41, 4.124a, Diagnostic Code (DC) 8520. 4. The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1953 to March 1955. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). At a February 2021 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. New and Material Evidence The Veteran's original claim for service connection for a back condition was denied in July 1961 and January 1963 rating decisions. The Veteran appealed and the Board issued a denial in April 1964. He did not appeal and the decision became final. He submitted a claim to reopen in September 2003 which was denied in a December 2003 rating decision. The RO determined that the Veteran had presented new and material evidence and the claim was reopened, but it was denied again on the merits. The Veteran timely appealed and in a July 2006 Board decision, the denial was confirmed. He did not appeal the Board decision and it became final. He submitted a new claim to reopen on December 8, 2014. In a May 2015 rating decision, the RO determined that no new and material evidence had been submitted since the July 2006 Board decision sufficient to reopen the claim. The Veteran timely appealed. Generally, a claim which has been denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As a final matter before turning to the specific facts of the Veteran's case, the Board notes that it has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim was received prior to the expiration of the appeal period stemming from the decision denying service connection. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Thus, 38 C.F.R. § 3.156(b) is not applicable. Evidence of record at the time of the July 2006 Board decision included the Veteran's service treatment records (STRs), military personnel records, post-service private treatment records, and VA examinations. At service entrance in January 1953, a normal spine evaluation was noted. The Veteran's STRs reflected a January 1954 fall on his right leg diagnosed as right sacroiliac strain. He was placed on quarters. A February 1954 STR noted that his pain was in the sciatic nerve, not the sacroiliac region. His March 1955 separation examination reflected a normal spine evaluation. Post-service medical records from February 1961 included the Veteran's report of pain in his low back since he fell in service. The clinician diagnosed a mild herniation of an intervertebral disc. X-rays conducted in April 1961 and May 1961 noted that in all likely probability he had early tuberculous spondylitis at the L2-L3 level. An April 1961 VA examination noted the Veteran's complaints of backache and right leg pain but an examination had negative findings. A June 1961 private clinician diagnosed congenital anomaly of the lumbar spine. October 1962 private treatment records diagnosed herniated right lumbar intervertebral disc. A private treatment record from March 1967 diagnosed severe recurrent low back pain probably secondary to a transition at the L5 vertebra. In June 2003 and August 2003, two private clinicians both stated that the Veteran had degenerative L5 changes but there was no evidence of a congenital spinal condition. An MRI conducted in September 2003 demonstrated thoracolumbar scoliosis; advanced degenerative changes in the lumbar spine; posterior osteophytes and broad disc protrusion combined with hypertrophic changes in the facet joints causing severe narrowing of the spinal canal and spinal stenosis at L5-S1; bulging annulus with posterior osteophytes and hypertrophic changes in the facet joints causing severe spinal stenosis at L4-L5; bulging annulus and hypertrophic changes in the facet joints causing severe narrowing at L2-L3 and L3-L4; normal bulging annulus at L1-L2; and narrowing of the neural foramina at L3-L4, L4-L5, and L5-S1. The Veteran underwent a VA examination in December 2003 at which he endorsed low back pain since leaving active service. He was diagnosed with lumbar myositis and thoracolumbar scoliosis. The examiner determined that the condition was less likely than not caused or aggravated by his service. In support, he stated that the low back trauma noted in service (January 1954 fall) apparently resolved before discharge, as there was nothing noted in his separation examination. There were no subsequent complaints until 1961. A congenital anomaly (transition at the L5 vertebra) was later diagnosed. He currently had herniated nucleus pulposus (HNP) and abundant degenerative changes in the lumbar spine but there was no correlation between his military service and findings in his low back up to five or six years after separation. HNP was deemed likely associated with some other trauma or heavy lifting after release from service. A letter from a private clinician dated January 2004 captured the Veteran's report of an injury to his low back and right leg during service and ongoing low back pain since then. It was noted that he was first seen by this clinician in 1982 at which time chronic lumbago with right sciatica and HNP was diagnosed. He was currently diagnosed with advanced discogenic disease; spondylosis; disc protrusion, severe; canal narrowing; and bilateral sciatica. He stated that these conditions, by history, were progressive since the fall during service. Another letter from a private clinician submitted in February 2004 concluded that the Veteran's pain and gait limitations were consistent with lumbosacral spinal canal stenosis. He continued that aging added to trauma causes stenosis. The July 2006 Board decision denied service connection on the basis that the one in-service complaint of a back injury was an acute trauma which was transitory in nature and resolved prior to separation and as such, was not the cause of his later-diagnosed conditions. Further, although there were some diagnoses of congenital conditions, they were not indicated at service entrance or at any time during service; as such, there was no indication that they were aggravated or increased in severity during service. Evidence added to the record since the July 2006 Board decision includes private and VA treatment records, hearing testimony, a private opinion, and lay statements. In a September 2014 statement, the Veteran contended that he experienced back pains as a secondary condition to his service-connected right leg sciatic neuralgia. A private June 2016 treatment record associated his severe lumbar stenosis with his lower extremity weakness. At the February 2021 hearing, the Veteran testified that his back pain began after the January 1954 fall in service and had hurt him consistently since then. He first sought treatment when it worsened in 1961. He experienced no post-service accidents involving injuries to his back. The Veteran also reported that his doctors had told him that his back condition was not a congenital disorder. In a statement submitted in March 2021, the Veteran noted that as his service-connected right leg disability progressed and the weaker his leg became, the more his back hurt. His back felt sore when he first injured his right leg, but as it progressed, the back pain worsened. A private medical opinion was submitted in March 2021. The examining clinician discussed in detail the types of back pain, noting that it is often multifactorial, including mechanical, physiological, and neurophysiological contributors, including congenital structural conditions. He listed the Veteran's pertinent medical history relative to his back and right lower extremity. He stated that if an episode of pain lasts for more than two weeks, muscles may weaken. Because using the muscles is painful, the natural tendency is for most patients to avoid using those muscles. However, a lack of activity leads to disuse atrophy (muscle wasting) and subsequent weakening, which in turn causes more pain because the muscles are less able to help hold up the body. In the Veteran's case, his service-connected right leg had demonstrated muscle atrophy, leg thinning, and weakness, leading him to develop a disturbance of gait (limping). Such limping caused a shifting of the body's center of gravity towards the affected leg, causing a seesaw effect in which lumbar disc centers became the center of rotation or fulcrum for the paralumbar muscle force. Repetitive pull of the trunk musculature resulted in increased wear and tear of the disc segments, causing or aggravating degenerative changes of the disc and facet joints. In the Veteran's case, limping as a result of his right leg muscle paralysis combined with his leg length discrepancy would, from a biomechanical perspective, generate the greatest lumbar disc load transmission due to major vertical and horizontal displacements of the center of gravity of the body mass required to maintain spinal equilibrium. The clinician therefore determined that the Veteran's back condition developed due to limping caused by the service-connected right leg disability. (a.) New and material evidence having been received, the claim for entitlement to service connection for a back condition is reopened. The Board finds that the new theory of entitlement (secondary service connection) contended by the Veteran and supported by a new (March 2021) private medical evaluation represents new and material evidence sufficient to warrant reopening of the claim for service connection for a back condition as they suggest a new connection between a service-connected disability and the claimed back condition that was not previously of record. Accordingly, the claim for service connection for a back condition is reopened. 2. Service Connection In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). For purposes of establishing service connection, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The provisions of 38 U.S.C. § 1153, and its implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a pre-existing disability has been aggravated. According to this statute and regulation, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Concerning this, mere temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. §§ 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510 (1996). Nonetheless, VA's Office of General Counsel has concluded that service connection for a congenital disability may be awarded if it is shown that it was aggravated through a superimposed injury during active service. If a superimposed disease or injury does occur, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990) at para. 3. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (a.) Service connection for a back condition as secondary to service-connected right leg sciatic neuralgia is granted. Based on the factual history outlined above, the Board finds that service connection for a back condition as secondary to the service-connected right leg sciatic neuralgia is warranted. There have been several diagnoses of possible congenital diseases or defects throughout the record. However, the Veteran's January 1953 service entrance examination reflected a normal spine and several clinicians have determined that his diagnosed conditions are not congenital. As such, there is no clear and unmistakable evidence that a congenital condition preexisted service. Accordingly, the Veteran was sound at service entrance. The Veteran has contended that the January 1954 fall in service is when his back pain first began and that as his service-connected right leg sciatic neuralgia worsened, so did his back pain. Advanced degenerative changes have since been diagnosed. The March 2021 private opinion discussed the body mechanics resulting from the type of condition the Veteran's service-connected right leg disability presented and how it contributed to limping and back pain and eventual disc damage and degeneration. He reviewed the Veteran's particular medical history, including the documented muscle atrophy, leg thinning, and weakness in the right lower extremity and his antalgic gait due to the disability for many years. The clinician determined that the service-connected right leg disability caused his current back condition. The Board attaches significant probative value to the opinion as it considered the Veteran's medical history, current symptomology, and accepted medical knowledge and was supported by adequate rationale. The Board finds that there is a balance of evidence as to whether the Veteran's back condition was caused or aggravated by his service-connected right leg sciatic neuralgia. Accordingly, service connection for a back condition is warranted. 3. Increased Rating Service connection for right leg sciatic neuralgia was granted at 40 percent disabling under 38 C.F.R. § 4.124, DC 8520, pertaining to the sciatic nerve, effective December 8, 2014, in a May 2015 rating decision. The Veteran timely appealed. As such, the Board will consider the extent and severity of the disability from December 8, 2014. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an award of service connection for disability has been granted, and the assignment of the initial disability rating is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disabilities). "Staged ratings" are appropriate when distinct time periods with different levels of impairment can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under the criteria of DC 8520, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating contemplates moderate incomplete paralysis, while a 30 percent disability rating contemplates severe incomplete paralysis; a 40 percent disability rating contemplates moderately severe incomplete paralysis; and a 60 percent rating contemplates severe incomplete paralysis with marked muscular atrophy. A maximum disability rating of 80 percent contemplates complete paralysis as evidenced by the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of the knee weakened, or very rarely lost. 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, the Veteran underwent a VA peripheral nerves examination in May 2015. Symptoms attributable to the service-connected right leg disability included moderate constant pain, severe intermittent pain, and no paresthesias/dysesthesias or numbness. Strength testing was reduced in ankle plantar flexion and dorsiflexion. Muscle atrophy was observed with a 2 cm difference between the right calf and the left calf. Deep tendon reflexes were hypoactive in the right knee and absent at the right ankle. Sensation testing for light touch was decreased at the right thigh/knee and lower leg ankle and absent at the foot/toes. Gait was antalgic with forward back-bending. The examiner indicated that in the right lower extremity there was moderately severe incomplete paralysis involving the sciatic nerve. A June 2015 private treatment record reflected the Veteran's report of numbness and tingling in the right leg with pain at night. He complained of loss of right lower extremity strength for several months in August 2015. He described constant pain and being unable to stand for more than 5 minutes or to drive using his right foot. In September 2015, an electromyogram/nerve conduction study (EMG/NCS) demonstrated primarily axonal sensory motor peripheral neuropathy and chronic right lower extremity radiculopathy. The Veteran presented for an October 2015 VA appointment with severe right leg weakness and atrophy secondary to right sciatic nerve paralysis with difficulty with gait and loss of standing tolerance. A June 2016 private treatment record noted atrophy in the right leg. A Disability Benefits Questionnaire (DBQ) completed in July 2016 stated that the Veteran's symptoms included right lower extremity pain, loss of strength, and numbness in his right big toe. Muscle strength testing was normal without atrophy. He had severe constant pain, no intermittent or dull pain, no paresthesias/dysesthesias, and mild numbness in the right lower extremity. At the February 2021 hearing, the Veteran testified that he kept losing strength in his right leg and now had to use a walker. Further, his right leg was thinner than his left. He felt his condition had worsened since the last examination in May 2015. The Veteran underwent a private evaluation in March 2021. The examining clinician confirmed that the Veteran had muscular atrophy in his right leg and that it was considerably thinner than his left leg. He had constant pain, at times excruciatingly severe, in his right lower extremity, as well as numbness, paresthesias, and weakness of the leg and foot. Pinprick, light touch, and position sense were 1 out of 2 in the right leg. Knee and ankle jerks were hypoactive. The Veteran's right leg was shorter than his left leg by 1.25 inches. (a.) An initial rating of 60 percent, but no more, for right leg sciatic neuralgia is granted. Based on the foregoing, the Board finds that an initial rating of 60 percent is warranted for the Veteran's right leg disability. Throughout the appeal period, muscle atrophy has been observed with thinning in the right lower extremity. Although clinicians have described the severity of the incomplete paralysis with differing terminology, symptomology has at times been noted to be severe. Given the evidence of atrophy and weakness, and affording the Veteran the benefit of the doubt, an initial 60 percent rating is warranted throughout the entire appeal period. A rating in excess of 60 percent is not demonstrated. The Veteran's right lower extremity has not had complete paralysis with no active movement or foot drop. He must use assistive devices, but is still able to ambulate on the right leg. As there is no evidence of complete paralysis, a rating in excess of 60 percent is not warranted at any time during the appeal period. Further, the Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. 4. TDIU The Veteran has contended that his service-connected disabilities have rendered him unable to obtain or maintain substantially gainful employment. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. As per this decision, the Veteran's service-connected right leg sciatic neuralgia met the threshold for a schedular TDIU throughout the entire appeal period. Additional service-connected disabilities include major depressive disorder (MDD), gastroesophageal reflux disease (GERD), allergic rhinitis, and a back condition. He also has nonservice-connected disabilities of diabetes mellitus, hypertriglyceridemia, benign prostatic hypertrophy, glaucoma, cataracts, myopia, astigmatism, presbyopia, blepharitis, vitreous detachment, and bilateral hearing loss. Additionally, the Veteran is 88 years old. In consideration of the "economic component," the Board observes the Veteran has a high school education and an associate degree in agronomy. He served as an infantryman and guard on active duty. After service, he worked at a post office in various positions until his retirement in 1989. In consideration of the "noneconomic component," the Veteran has indicated that he retired from his job due to chronic pain. He told a May 2015 VA examiner that he had a medical certification with restrictions to avoid back injuries at work. In a March 2021 statement, he recounted that he requested to move from being a postal carrier to the position of postal clerk and his supervisor accommodated him with that desk job. However, due to chronic pain, he eventually retired. Regarding his service-connected right leg sciatic neuralgia, a May 2015 VA examiner determined that it resulted in moderately severe incomplete paralysis that did not cause a functional impact. A private clinician in March 2021 stated that the Veteran's severe right leg pain required help getting up, sitting down, laying down, and getting out of bed. He also was unable to dress his lower body himself or bend down. He could not walk or stand for more than 10 minutes and was at risk of falls. He required a walker for mobility. The clinician concluded that placing the Veteran in a work environment would be a risk for his safety and would further aggravate his right leg condition. He determined that the leg condition rendered him unable to work. The Veteran described decreased strength and increased pain in his right leg, making it impossible for him to drive using his right foot. Regarding his back condition, a March 2021 private clinician noted that his pain was constant and that at least twice a week he experienced flare-ups requiring him to stay in bed. He was unable to bend or twist his waist. Although he could sit for prolonged periods of time, he was unable to stand for more than 15 minutes because he felt excruciating pain. At the hearing, the Veteran testified that his back pain and being unable to stand for long periods led him to retire from the post office. Regarding his GERD, an August 2019 VA examiner determined that there was no functional impact. Regarding his allergic rhinitis, an August 2019 examiner concluded that it would result in decreased concentration and focus. The Veteran's MDD has been determined by a private clinician in December 2018 and a VA examiner in December 2019 to result in occupational and social impairment with reduced reliability and productivity. A March 2020 examiner found that it resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In a March 2021 private opinion, a clinician stated that the Veteran's mental condition affected his memory. Further, medications taken for pain and for his MDD made him drowsy and sleepy, thereby making his being placed in a work environment a risk for safety. He concluded that his mental condition rendered him unable to work. (a.) A TDIU is granted. From an economic perspective, the Veteran has the education, skills, work history, and vocational training to perform work as an infantryman, postal carrier or clerk, or possibly a position in agronomy. From a non-economic perspective, his service-connected disabilities limit the ability engage in prolonged walking and standing, bending, and twisting. His concentration, focus, and memory are also limited. A private clinician indicated that the Veteran was not limited in prolonged sitting due to his disabilities. In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, supra. The evidence suggests that the Veteran could not perform the physical requirements of an infantryman nor the prolonged standing, walking, and bending of a postal carrier based on his back and right leg disabilities. Further, even when his limitations were accommodated and his position was switched to postal clerk, his chronic pain made it necessary for the Veteran to retire from his job. The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. It appears that the Veteran could not engage in employment which required close concentration and focus, due to his disabilities and the medications required to treat them. As such, the Board finds, affording the Veteran the benefit of the doubt, that his service-connected disabilities alone, when considered apart from his advanced age and nonservice-connected disabilities, render him unable to engage in substantially gainful employment for which he has the education, skills, work history, and vocational training to perform. Although he has an education in agronomy, there is no indication that he ever worked in the field. His occupational history is entirely based on his work at a post office, which even after accommodations were made, was too physically taxing for the Veteran. Accordingly, the Board finds that the Veteran's service-connected disabilities preclude substantially gainful employment and a TDIU is warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, Associate 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.