Citation Nr: 22011603 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 18-36 298 DATE: March 1, 2022 ORDER Entitlement to an initial disability rating of 40 percent, but no higher, for right upper extremity radiculopathy from February 24, 2014 to September 23, 2020 is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial disability rating higher than 40 percent for right upper extremity radiculopathy for the entire appeal period is denied. Entitlement to an initial disability rating of 30 percent, but no higher, for left upper extremity radiculopathy from February 24, 2014 to February 27, 2019 is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial disability rating higher than 30 percent for left upper extremity radiculopathy for the entire appeal period is denied. Entitlement to an initial disability rating of 20 percent, but no higher, for right lower extremity radiculopathy from February 24, 2014 to August 20, 2019 is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial disability rating higher than 20 percent for right lower extremity radiculopathy for the entire appeal period is denied. Entitlement to an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy from February 24, 2014 to September 23, 2020 is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial disability rating higher than 20 percent for left lower extremity radiculopathy for the entire appeal period is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the entire appeal period is denied. FINDINGS OF FACT 1. From February 24, 2014 to September 23, 2020, the symptoms of the Veteran's right upper extremity radiculopathy more nearly approximated symptoms of moderate, but not severe, incomplete paralysis. 2. For the entire appeal period, the symptoms of the Veteran's right upper extremity radiculopathy did not more nearly approximate symptoms of severe, incomplete paralysis. 3. From February 24, 2014 to February 27, 2019, the symptoms of the Veteran's left upper extremity radiculopathy more nearly approximated symptoms of moderate, but not severe, incomplete paralysis. 4. For the entire appeal period, the symptoms of the Veteran's left upper extremity radiculopathy did not more nearly approximate symptoms of severe, incomplete paralysis. 5. From February 24, 2014 to August 20, 2019, the symptoms of the Veteran's right lower extremity radiculopathy more nearly approximated symptoms of moderate, but not moderately severe, incomplete paralysis. 6. For the entire appeal period, the symptoms of the Veteran's right lower extremity radiculopathy did not more nearly approximate symptoms of moderately severe, incomplete paralysis. 7. From February 24, 2014 to September 23, 2020, the symptoms of the Veteran's left lower extremity radiculopathy more nearly approximated symptoms of moderate, but not moderately severe, incomplete paralysis. 8. For the entire appeal period, the symptoms of the Veteran's left lower extremity radiculopathy did not more nearly approximate symptoms of moderately severe, incomplete paralysis. 9. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. From February 24, 2014 to September 23, 2020, the criteria for an initial disability rating of 40 percent, but no higher, for right upper extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code (DC) 8512. 2. For the entire appeal period, the criteria for an initial disability rating higher than 40 percent for right upper extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.124a, DC 8512. 3. From February 24, 2014 to February 27, 2019, the criteria for an initial disability rating of 30 percent, but no higher, for left upper extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.124a, DC 8512. 4. For the entire appeal period, the criteria for an initial disability rating higher than 30 percent for left upper extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.124a, DC 8512. 5. From February 24, 2014 to August 20, 2019, the criteria for an initial disability rating of 20 percent, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.124a, DC 8520. 6. For the entire appeal period, the criteria for an initial disability rating higher than 20 percent for right lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.124a, DC 8520. 7. From February 24, 2014 to September 23, 2020, the criteria for an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.124a, DC 8520. 8. For the entire appeal period, the criteria for an initial disability rating higher than 20 percent for left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.124a, DC 8520. 9. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to September 1996. These matters initially came before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, granted the claims of service connection for lumbar strain and status post cervical spine surgery with respective 10 percent initial evaluations, both effective February 24, 2014. The Veteran timely appealed the initial disability ratings assigned. As discussed further below, the rating criteria for the spine provide for separate evaluations for objective associated neurologic abnormalities. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (providing that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code). Thus, the issues of higher initial disability ratings for bilateral upper and lower extremity radiculopathy are considered by the Board as part and parcel of the underlying claims for higher initial disability ratings for the Veteran's service-connected cervical spine and lumbar strain disabilities, and the claim period dates back to the February 24, 2014 effective date of service connection for the cervical spine and lumbar strain disabilities. Chavis v. McDonough, 34 Vet. App. 1, 15-18 (2021) (radiculopathy need not be separately appealed to be considered part of a claim for a higher rating for the spine) In May 2018, the Agency of Original Jurisdiction (AOJ) granted service connection for left lower extremity radiculopathy (claimed as left leg condition with numbness) with an initial evaluation of 10 percent, effective April 23, 2018. As noted previously, the appeal period for this claim dates back to the February 24, 2014 grant of service connection for lumbar strain. Therefore, the claim is still on appeal before the Board. In February 2020, the Veteran testified during a Central Office hearing in Washington, D.C. before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In March 2020, the Board remanded the claims of higher initial disability ratings for bilateral upper and lower extremity radiculopathy and entitlement to a TDIU for further development, to include a VA examination and development and adjudication of the TDIU claim. The AOJ substantially complied with the Board's March 2020 remand directives by developing and adjudicating the TDIU claim, and for the reasons indicated in the discussion below, the September 2020 VA examination is adequate to decide the claims for higher initial disability ratings for bilateral upper and lower extremity radiculopathy. Stegall v. West, 11 Vet. App. 268, 271 (1998). As a final preliminary matter, in a September 2020 rating decision and September 2020 Supplemental Statement of the Case (SSOC), the AOJ denied the claim of entitlement to a TDIU prior to September 23, 2020. However, the "prior to September 23, 2020" language was in error, as the AOJ denied the claim of entitlement for the whole appeal period, not just prior to September 23, 2020. Entitlement to higher initial disability ratings for bilateral upper and lower extremity radiculopathy Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. The Veteran's right and left upper extremity radiculopathy are each rated under DC 8512, which contemplates impairment of the lower radicular group. The evidence of record reflects that the Veteran is right hand dominant. Accordingly, his left upper extremity is his minor (non-dominant) extremity, and his right upper extremity is his major (dominant) extremity. For the minor (non-dominant) extremity, 20, 30, and 40 percent disability ratings are warranted for mild, moderate, or severe incomplete paralysis. For the major (dominant) extremity, 20, 40, and 50 percent disability ratings are warranted for mild, moderate, or severe incomplete paralysis. A 60 percent rating for the minor extremity and a 70 percent rating for the major extremity is warranted for complete paralysis of the lower radicular group. 38 C.F.R. § 4.124a, DC 8512. The Veteran's right upper extremity radiculopathy is rated 20 percent from February 27, 2019, and 40 percent from September 23, 2020. His left upper extremity radiculopathy is rated 30 percent from February 27, 2019. As noted previously, the claim period for these disability ratings begins February 24, 2014. The Veteran's right and left lower extremity radiculopathy are each rated under DC 8520 for impairment of the sciatic nerve. Under DC 8520, a 10 percent rating is warrant for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The Veteran's right lower extremity radiculopathy is rated 10 percent from April 23, 2018, and 20 percent from August 20, 2019. His left lower extremity radiculopathy is rated 10 percent from April 23, 2018, and 20 percent from September 23, 2020. As noted previously, the claim period for these disability ratings begins February 24, 2014. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The words "mild," "moderate," and "severe" are not defined in the VA 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 as contemplated by the requirements of the law." 38 C.F.R. § 4.6. Private treatment records from September 2015 and April 2016 diagnosed the Veteran with right and left upper extremity cervical radiculopathy. A September 2015 private treatment note indicated that the Veteran reported tingling in the left biceps and forearm. An April 2018 VA examiner confirmed the Veteran's bilateral lower extremity radiculopathy. Reflex and sensory examinations were normal with no muscle atrophy. The straight leg test for both legs was positive. The Veteran experienced mild intermittent pain, mild paresthesias and/or dysesthesias, and numbness in the bilateral lower extremities. There were no other signs or symptoms of radiculopathy. The L4/L5/S1/S2/S3 nerve roots of both extremities were involved. The examiner found that the Veteran's bilateral lower extremity radiculopathy was mild in severity. In a February 2019 VA treatment note, the Veteran reported increasing symptoms of numbness and weakness in his upper extremities. In a September 2019 VA treatment note, the Veteran reported he had pain radiating to his right leg and numbness in the right foot. Motor function was grossly intact. In an October private treatment note, the Veteran described pain that radiated into the right buttock, posterior thigh, and posterior knee region, as well as weakness in the right leg and numbness and tingling in the hands. The pain was worse when seated, such as when driving. During his February 2020 Board hearing, the Veteran indicated he experienced numbness, weakness, and radiating pains into his arms and fingers. Pain also radiated from his lower back into both legs. In a September 2020 VA examination, the VA examiner confirmed the Veteran's diagnoses of bilateral upper and lower extremity radiculopathy. The Veteran reported symptoms of numbness and tingling in the fingers, pain in the left arm, weakness in the hands, numbness in his feet, and lower extremity pain that alternated on the sides. He endorsed mild intermittent pain in the left upper extremity and bilateral lower extremities, moderate paresthesias and/or dysesthesias in the bilateral upper and lower extremities, mild numbness in the bilateral upper extremities, and moderate numbness in the bilateral lower extremities. The Veteran did not have muscle atrophy. Muscle strength testing for bilateral elbow flexion and extension was normal, while bilateral wrist flexion and extension, bilateral grip, bilateral pinch (thumb to index finger), bilateral knee extension, and bilateral ankle plantar flexion and dorsiflexion produced active movement against some resistance. Reflex examination was normal except for bilateral brachioradialis and left knee, which was hypoactive. Sensory examination was normal. There were no trophic changes, and gait was normal. The examiner found that the severity of the Veteran's bilateral lower radicular group (upper extremity) symptoms resulted in moderate, incomplete paralysis, and the severity of the bilateral sciatic nerve symptoms resulted in moderate, incomplete paralysis. His upper and lower extremity radiculopathy did not impact his ability to work. For the following reasons, an initial disability rating of 40 percent, but no higher, for right upper extremity radiculopathy from February 24, 2014 to September 23, 2020, an initial disability rating of 30 percent, but no higher, for left upper extremity radiculopathy from February 24, 2014 to February 27, 2019, an initial disability rating of 20 percent, but no higher, for right lower extremity radiculopathy from February 24, 2014 to August 20, 2019, and an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy from February 24, 2014 to September 23, 2020, are warranted. The Veteran's right upper extremity (dominant) radiculopathy symptoms correspond to the criteria for a 40 percent initial disability rating, and his left upper extremity (non-dominant) radiculopathy symptoms correspond to the criteria for a 30 percent initial disability rating. In regard to the Veteran's bilateral lower extremity radiculopathy, the severity of those symptoms corresponds to the criteria for 20 percent initial disability ratings. Here, although some health care professionals characterized the degree of the Veteran's right upper extremity radiculopathy impairment as mild from February 27, 2019 to September 23, 2020, and the Veteran's right and left lower extremity radiculopathy impairment as mild from April 23, 2018 to August 20, 2019, and April 23, 2018 to September 23, 2020, respectively, that characterization is not binding on the Board. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present"). There is a lack of evidence showing that the Veteran's right upper extremity and left lower extremity radiculopathy suddenly became worse on the date of the September 23, 2020 VA examination, and that the right lower extremity suddenly became worse on August 20, 2019. In this regard, effective dates should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). In this case, the evidence of record shows that the symptoms of his bilateral upper and lower extremity radiculopathy have remained the same since approximately 2014. Therefore, the evidence of record reflects that the severity of the Veteran's bilateral upper and lower extremity radiculopathy symptoms more nearly approximated moderate, incomplete paralysis. Id. Thus, the Veteran is entitled to an initial disability rating of 40 percent from February 24, 2014, the date of the grant of service connection for cervical spine and lumbar strain disabilities, to September 23, 2020 for right upper extremity radiculopathy, an initial disability rating of 30 percent from February 24, 2014 to February 27, 2019 for left upper extremity radiculopathy, an initial disability rating of 20 percent from February 24, 2014 to August 20, 2019 for right lower extremity radiculopathy, and an initial disability rating of 20 percent from February 24, 2014 to September 23, 2020 for left lower extremity radiculopathy. However, disability ratings higher than 40 percent and 30 percent, respectively, for the Veteran's right and left upper extremity radiculopathy, and disability ratings higher than 20 percent for bilateral lower extremity radiculopathy, for the entire appeal period are not warranted because the evidence of record does not reflect that there have been symptoms more nearly approximating severe, incomplete paralysis. Although the Veteran has indicated that symptoms from his bilateral upper and lower extremity radiculopathy have caused him pain, paresthesias and/or dysesthesias, and numbness, he has not indicated that the symptoms were so significant and widespread in their effect that a finding of severe, incomplete paralysis is warranted. Furthermore, the Veteran's symptoms have been predominantly sensory. A September 2019 VA treatment noted indicated that motor function as grossly intact, and none of the VA examiners found trophic changes. In this regard, the Board notes that when the involvement is wholly sensory, the rating should be for, at most, the moderate degree. 38 C.F.R. § 4.124a. Thus, the evidence of record reflects bilateral upper and lower extremity radiculopathy that more closely approximates moderately severe symptoms throughout the appeal period. For the foregoing reasons, an initial disability rating of 40 percent, but no higher, from February 24, 2014 to September 23, 2020 for right upper extremity radiculopathy, an initial disability rating of 30 percent, but no higher, from February 24, 2014 to February 27, 2019 for left upper extremity radiculopathy, an initial disability rating of 20 percent, but no higher, from February 24, 2014 to August 20, 2019 for right lower extremity radiculopathy, and an initial disability rating of 20 percent, but no higher, from February 24, 2014 to September 23, 2020 for left lower extremity radiculopathy, are warranted. The evidence is neither evenly balanced nor approximately so with regard to whether higher disability ratings are warranted for the entire appeal period. Rather, the evidence at this time weighs persuasively against the criteria required for disability ratings higher than 40, 30, and 20 percent. The benefit of the doubt doctrine, 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, is therefore not for application as to higher disability ratings. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The Board has considered the Veteran's claims and decided entitlement based on the evidence. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, other than TDIU as discussed below, with respect to his claims. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a TDIU The Veteran contended during his February 2020 Board hearing that he retired from his job as a deputy sheriff because the gear he had to wear aggravated his service-connected disabilities. He additionally testified that he worked part-time as security at a hospital, and his employer allowed him to take time-off for medical appointments. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Marginal employment is not considered substantially gainful employment, and a veteran can establish marginal employment either by demonstrating an earned annual income less than the poverty threshold established by the U.S. Census Bureau or on a facts-found basis. Id.; Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Marginal employment on a facts-found basis includes, but is not limited to, employment in a protected environment when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a); Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (discussing a protected work environment in the TDIU context). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is service-connected for lumbar strain evaluated at 40 percent disabling from February 24, 2014, status post cervical spine surgery evaluated at 30 percent disabling from February 24, 2014, posttraumatic stress disorder evaluated at 50 percent disabling from July 31, 2019, right upper extremity radiculopathy now evaluated at 40 percent from February 24, 2014, left upper extremity radiculopathy now evaluated at 30 percent from February 24, 2014, right lower extremity radiculopathy now evaluated at 20 percent from February 24, 2014, left lower extremity radiculopathy now evaluated at 20 percent disabling from February 24, 2014, and noncompensable right elbow tendonitis, scar status post cervical spine surgery, and pseudofolliculitis barbae. As the Veteran has two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined disability rating is 70 percent or higher, he meets the schedular criteria for a TDIU from February 24, 2014. The Veteran submitted his Application for Increased Compensation Based on Unemployability (VA Form 21-8940) to the VA in May 2020. The Veteran indicated that his service-connected back and neck disabilities prevented him from securing or following any substantially gainful occupation. He last worked full-time in March 2011 as a deputy sheriff and transitioned to part-time 29 hours a week from April 2011 to August 2016. He was presently employed as a protection officer at a regional medical center working approximately 32 hours a week and had been employed in that job since April 2000. The Veteran indicated that he completed four years of college. As noted previously, a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case. Ortiz-Valles, 28 Vet. App. at 71. In this regard, work that is less than on a full-time basis is not necessarily considered marginal. Faust v. West, 13 Vet. App. 342 (2000) In this case, the Veteran reported that the total monthly income earned from his sheriff job from April 2011 to August 2016 was $1,267, and his protection officer job from April 2000 to the present was $1,868. Therefore, his totaled earnings for one year of his sheriff job was $15,204, and his protection officer job earned $21,416. The federal poverty threshold for a family size of one, under 65 years old, ranged from $11,702 to $12,486 from 2011 to 2016, and from 2016 to 2020 ranged from $11,756 to $12,413 for a family size of one, over 65 years old. Poverty Thresholds, U.S. Census Bureau, https://www.census.gov/topics/income-poverty/poverty.html (last visited February 17, 2022). The Veteran is currently 69 years old and was under 65 years old from April 2011 to August 2016. Thus, the Veteran's earned income from his jobs was higher than the poverty threshold during the entire appeal period. Consequently, the Veteran must establish marginal employment on a facts-found basis. 38 C.F.R. § 4.16(a). Here, the Veteran has not contended, nor does the evidence of record suggest, that his job as a protection officer was employment in a protected environment. The Court in Cantrell v. Shulkin, 28 Vet. App. 382 (2017) addressed this method of establishing marginal employment, which required the Court to review the meaning of employment in a protected work environment. The Court found that the plain language of § 4.16(a) does not expressly define employment in a protected environment. The non-exhaustive list of examples of what may constitute employment in a protected environment, i.e., a family business or sheltered workshop, fails to resolve this uncertainty. The Court also determined that it was unable to defer to the Secretary's definition, finding instead that the Secretary had refused to proffer any definition of employment in a protected environment for the Court to analyze. Absent an articulated standard for employment in a protected environment, the Court concluded that it was unable to effectively review the Board's decision. The Board recognizes that a "protected environment" has not been defined by regulation. Merriam-Webster's Collegiate Dictionary offers several definitions of the word "protect," but one that appears to be applicable in this inquiry is "to save from contingent financial loss." Merriam-Webster's Collegiate Dictionary (online) (2017). "Contingent" can mean "likely but not certain to happen; possible." Id. Thus, within the context of awarding a TDIU, a protected work environment exists when one's employment is not based on merit alone but rather is established to save the individual from likely financial loss. In other words, a protected environment is an employment environment that would not exist but for the willingness of the employer to hire and pay the employee for altruistic reasons. The Veteran's employment as a protection officer at a medical center would not be considered "employment in a protected environment" as the term is used in 38 C.F.R. § 4.16(a). There is no evidence of record, and the Veteran does not contend, that his employer's purpose is to provide employment to disabled workers or was designed to rehabilitate, train, and provide employment for those with disabilities. Moreover, there is no evidence of record that the Veteran worked for a family business or sheltered workshop, or that the Veteran was provided with special accommodations that would not be provided to other employees of similar status. Thus, entitlement to a TDIU would not be appropriate. Moreover, November 2014, April 2018, and September 2020 VA examiners found that the Veteran's neck, back, and radiculopathy disabilities did not impact his ability to work. While the Board is sympathetic to the Veteran's claim that his disabilities make it difficult to work, for the foregoing reasons, the Veteran has been engaged in non-marginal employment throughout the appeal period, and the evidence does not reflect that he was unable to follow and maintain substantially gainful employment due to service-connected disabilities. The evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a TDIU is warranted. Rather, the evidence at this time weighs persuasively against the criteria for entitlement to a TDIU. The benefit of the doubt doctrine, 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, is therefore not for application as to the claim. Lynch, 21 F.4th 776. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.