Citation Nr: 22012958 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 20-18 419 DATE: March 8, 2022 ORDER Service connection for unspecified anxiety disorder is granted. Service connection for diabetes mellitus, type II, is granted. Service connection for hypertension is granted. An earlier effective date for the grant of service connection for a lumbar disability is denied. An earlier effective date for the grant of service connection for a right thigh disability is denied. An initial rating of 40 percent, but no higher, for a lumbosacral strain is granted. An initial rating of 40 percent, but no higher, for right lower extremity radiculopathy (sciatic nerve) is granted. An initial rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve) is denied. For the period on appeal, an initial rating of 10 percent, but no higher, for a right hip disability (limited adduction) is granted. An initial rating of 20 percent, but no higher, for a right hip disability (limited flexion) is granted for the period on appeal. An initial rating in excess of 10 percent for a right hip disability (limited extension), to include an extraschedular rating, is denied. A total rating based on individual unemployability (TDIU) is granted effective June 1, 2017. REMANDED Entitlement to a separate rating for a right thigh muscle group disability is remanded. FINDINGS OF FACT 1. The competent and probative evidence tends to show the Veteran's unspecified anxiety disorder is due to service. 2. The competent and probative evidence tends to show the Veteran's current diabetes mellitus began during active service. 3. The competent and probative evidence shows the Veteran's current hypertension is proximately due to his service-connected disabilities. 4. The record contains no informal claim, formal claim, or written intent to file a claim for entitlement to service connection for a lumbar disability prior to June 13, 2011. 5. The record contains no informal claim, formal claim, or written intent to file a claim for entitlement to service connection for a right thigh disability prior to June 13, 2011. 6. The most competent and probative evidence shows the Veteran had forward flexion of 15 degrees. 7. The competent and probative evidence shows moderately severe incomplete paralysis of the right lower extremity (sciatic nerve). 8. The competent and probative evidence shows moderate incomplete paralysis of the left lower extremity (sciatic nerve). 9. For the period on appeal, the competent and probative evidence tends to show the Veteran's hip has abduction of 20 degrees or greater. 10. For the period on appeal, the competent and probative evidence tends to show the Veteran's hip has flexion of 30 degrees or greater. 11. During the period on appeal, the Veteran's right hip disability for limited extension has been rated at 10 percent, the maximum schedular rating, and the schedular rating criteria adequately contemplate his level of disability and symptomatology. 12. The Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment consistent with his education and work history from June 1, 2017. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include unspecified anxiety disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.304, 3.304, 4.125(a). 2. The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. 3. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.310(a). 4. The criteria for an effective date prior to June 13, 2011, for the grant of service connection for lumbar disability are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 5. The criteria for an effective date prior to June 13, 2011, for the grant of service connection for a right thigh disability are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 6. The criteria for an initial rating of 40 percent, but no higher, for a lumbar disability are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. 7. The criteria for an initial rating of 40 percent, but no higher, for radiculopathy of the right lower extremity (sciatic nerve) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, DC 8520. 8. The criteria for an initial rating in excess of 20 percent for radiculopathy of the left lower extremity (sciatic nerve) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, DC 8520. 9. For the period on appeal, the criteria for an initial rating of 10 percent, but no higher, for a right hip disability (limited rotation of the thigh) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5253. 10. For the period on appeal, the criteria for an initial rating of 20 percent, but no higher, for a right hip disability (limited flexion) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5252. 11. For the period on appeal, the criteria for an initial rating in excess of 10 percent, for a right hip disability (limited extension) are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5251. 12. The criteria for TDIU are met since June 1, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from September 1993 to May 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2013, October 2014 (acquired psych, DMII, HTN), and June 2017 (TDIU) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing in September 2021; a transcript is of record. The Veteran filed a claim for service connection for PTSD. However, pursuant to Clemons v. Shinseki the Board finds that it is appropriate to characterize the Veteran's claim as noted above. 23 Vet. App. 1, 5 (2009). Additionally, the Board has taken jurisdiction of the issue of entitlement to an increased rating for bilateral lower extremity radiculopathy as part and parcel of the claim for increased rating for a back disability per 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran asserts service connection for an acquired psychiatric disorder, to include unspecified anxiety disorder. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of unspecified anxiety disorder, and that the evidence shows it is due to active service. 38 U.S.C. §§ 1110, 1131, 5107(b). He has a current diagnosis of unspecified anxiety disorder. See 1/3/2022, Medical Treatment Record Non-Government Facility. As such, the first element of service connection is met. He testified at a Board hearing regarding his disability. He explained during service, he fell and was nearly crushed by a tank. He also asserted that he was retaliated against during service and verbally threatened. The Board finds the Veteran competent and credible to describe his in-service experiences. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While the statements are competent and credible to describe his experiences during service, the Veteran is not competent to determine that his current disability is due to service as it requires specialized knowledge of psychology/psychiatry. The January 2022 psychologist provided a positive nexus opinion. In support, she explained that the Veteran's stressful events during service, as well as no mental health problems prior to service, showed his disorder was due to service. The examiner detailed the stressful experiences for the Veteran during service and noted corroborating statements from others. While somewhat conclusory, the Board finds this opinion to have some probative value as it based on a thorough review of the Veteran's records. After review of the competent and probative evidence, the Board finds that service connection for unspecified anxiety disorder is warranted. The private psychologist provided a positive nexus opinion and linked it to his stressful experiences during service. Additionally, there is no negative nexus opinion. As such, the Board finds that service connection for unspecified anxiety disorder is warranted. 38 C.F.R. § 3.102. 2. Entitlement to service connection for diabetes mellitus, type II. The Veteran asserts service connection for diabetes mellitus. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of diabetes mellitus, and that the evidence tends to show it began during his active duty. 38 U.S.C. §§ 1110, 1131, 5107(b). The Veteran's VA treatment records show a current diagnosis of diabetes mellitus, type II. As such, the first element of service connection is met. He testified at a Board hearing regarding his disability through his representative. They explained that while his service treatment records did not document diabetes mellitus, he had dizziness and dehydration during service. The Board finds the Veteran competent and credible to describe his in-service experiences. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While the statements are competent and credible to describe his experiences during service, the Veteran is not competent to determine that his diabetes mellitus began in service as it requires specialized knowledge of multiple body systems. A private medical record from January 2015 states that the Veteran's diabetes mellitus began during his active duty and went untreated. The Board finds this record to have limited probative value as it is conclusory without supporting rationale. An additional private nexus opinion from January 2017 was provided. The physician stated that the Veteran has had diabetes mellitus since active duty. The physician stated the Veteran had a history of blood sugar fluctuations without treatment. The Board finds this opinion to have more probative value. In this regard, the physician evaluated the Veteran, reviewed his medical records, and associated his disability with earlier blood sugar fluctuations. Although it tends to be somewhat conclusory, the Board finds it to have probative value. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence tends to show that the Veteran's diabetes mellitus, type II, began during his active duty. The Board has found the Veteran competent and credible to describe his experiences in service. There are positive, if sometimes conclusory, nexus opinions and there is not a competent negative nexus opinion during the period on appeal. As such, the competent and probative evidence weighs in favor of the claim; therefore, service connection for diabetes mellitus, type II, is warranted. 38 C.F.R. § 3.102, 3.303. 3. Entitlement to service connection for hypertension. The Veteran asserts that he has hypertension, to include as secondary to his service-connected disabilities. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has a current diagnosis of hypertension, and that the evidence shows that it is caused by his service-connected disabilities. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.310(a). The Veteran's VA treatment records show a current diagnosis of hypertension. As such, the first element of service connection is met. He testified at a Board hearing regarding his disability through his representative that he had elevated blood pressure readings during service. The Board finds the Veteran competent and credible to describe his in-service experiences as his service treatment records show elevated blood pressure readings. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While the statements are competent and credible to describe his experiences during service, the Veteran is not competent to determine that his hypertension began in service as it requires specialized knowledge of multiple body systems. A 2015 medical record stated his hypertension was secondary to his obstructive sleep apnea. The Board finds this opinion to have limited probative value as it is conclusory. In 2016, a VA examiner provided a negative nexus opinion. In support, the examiner stated his hypertension was not due to his sinusitis. Additionally, it did not begin in service as the examiner stated he was not diagnosed with hypertension during service and his elevated readings during service were a normal physiologic response. The Board finds this opinion to have some probative value. The examiner explains why the elevated blood pressure readings were not indicative of a hypertension diagnosis; however, the examiner also overly relies on no hypertension diagnosis during service. A 2017 private opinion stated the Veteran's hypertension was aggravated by his diabetes mellitus, type II. The Board finds this opinion to also have limited probative value as it is conclusory. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran on the material issue of nexus, the evidence tends to show that his hypertension is secondary to his service-connected disabilities. 38 U.S.C. § 5107(b). There are positive nexus opinions that show a secondary relationship between the Veteran's hypertension and his service-connected disabilities. Additionally, the negative nexus opinion relies on the absence of a hypertension diagnosis during service. Therefore, the Board finds that service connection for hypertension is warranted. 38 C.F.R. § 3.310(a). Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98. 4. Entitlement to an earlier effective date for the grant of service connection for a lumbar disability. 5. Entitlement to an earlier effective date for the grant of service connection for a right thigh disability. The Veteran asserts entitlement to earlier effective dates for the grants of service connection for a lumbar disability and a right thigh disability. Initially, the Board acknowledges that the Veteran and his representative did not present further argument at the Board hearing. The Veteran first filed a claim for service connection for a lumbar and a right thigh disability that was received by VA on June 13, 2011 as indicated by a VA RO received date stamp. The Board acknowledges the application for compensation was signed by the Veteran on May 3, 2011. The claims were denied in a June 2013 rating decision. The Veteran appealed. These two issues were granted by the Board in May 2018. A February 2019 rating decision that implemented the Board's decision assigned effective dates of June 13, 2011 for both the lumbar spine and right thigh. The Board has reviewed the record but has not found any formal or informal communication that could be construed as a claim for service connection for a lumbar and right thigh disability prior to the grant of service connection of June 13, 2011. The Veteran did not file his claims within one year of discharge (within one year of May 2002). A review of the claims file shows that other than his service treatment records, June 2011 is the earliest documents (application for compensation/appointment of Veterans service organization) were associated with the claims file. Additionally, the Board acknowledges he signed his application in May 2011; however, his claim was not received by VA until June 13, 2011. As such, June 13, 2011 (the date VA received the petition for service connection issues) is the earliest possible effective date with regards to the claim for service connection for lumbar and right thigh disabilities. 38 C.F.R. § 3.400(o) In the instant case, given the governing legal authority, the effective dates have been appropriately assigned as the date of receipt of claim. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is unable to assign an effective date prior to June 13, 2011, for the grants of service connection for lumbar and right thigh disabilities. Therefore, the Veteran's claims for earlier effective dates are denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance' including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. "The question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. The competent evidence of record does not tend to indicate that the structural integrity of the Veteran's service-connected joints is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. Additionally, it is acknowledged some of the examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development solely for this purpose would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). As noted below, the examination reports contain evidence regarding the frequency, severity, and duration of the Veteran's pain level during flare-ups per her report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran's service-connected disabilities. As such, the Board finds that it has adequate competent evidence when viewed in total to assess the Veteran's disability picture. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). 6. Entitlement to an initial rating in excess of 10 percent prior to February 14, 2020, and 40 percent thereafter for a lumbosacral strain. The Veteran's lumbar disability is rated at 10 percent based on the General Rating Formula for the Spine under Diagnostic Code 5237 prior to February 14, 2020, and 40 percent thereafter. 38 C.F.R. § 4.71a. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). Effective February 7, 2021, DC 5010 provides that traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Under the General Rating Formula for the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted where the evidence shows 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 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., Note (1). Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. Id. DC 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA amended DC 5243 to clarify to "assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran first participated in an examination for his lumbar spine in April 2016. He had flare-ups where he would have back spasms and it would lock up. He had forward flexion of 80 degrees; extension, right and left lateral flexion and rotation of 30 degrees. He had pain with forward flexion. He had localized tenderness. He did not have pain with weight bearing. He was able to perform three times repetitive use testing with no loss of range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. He did not have ankylosis or intervertebral disc syndrome (IVDS). The Board acknowledges this examination did not report range of motion for flare-ups. However, based on a later examination reported below showing range of motion for flare-ups remaining the same as during active range of motion testing, the Board finds it reasonable to conclude his range of motion during flare-ups at this examination would remain the same or nearly the same as active testing. His most recent examination is from February 2020. He reported severe, frequent flare-ups. They would be alleviated by medication, hot and cold packs, and massages. He had functional loss with difficulty with sitting, standing, walking prolonged periods, and bending, squatting, and heavy lifting. He had forward flexion of 15 degrees with pain. His abnormal range of motion contributed to functional loss and difficulty with sitting, standing, and bending. He had pain on weight-bearing. He was not able to perform three times repetitive use testing due to pain. The examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over time and during flare-ups. His forward flexion remained at 15 degrees. He had pain on passive range of motion and non-weight bearing testing. He had disturbance of locomotion, interference with sitting, and interference with standing. He did not have ankylosis or IVDS. The Veteran testified that he has had severe flare-ups during the period on appeal. He would have two to three flare-ups per week during the past decade. In light of the Veteran's testimony, as well as the Board (in 2018) previously finding inadequacies with the 2016 examination, the Board finds the 2020 examination to have the most probative value for Veteran's symptoms for the entire period on appeal. After review of the competent and probative evidence, the Board finds that an initial rating of 40 percent is warranted for the period on appeal. As noted above, the Board has found the 2016 examination to have little probative value. As such, the 2020 examination is more representative for the Veteran's symptoms for the period on appeal. He had forward flexion limited to 15 degrees. As such, the Board resolves reasonable doubt in favor of the Veteran and finds that he has had forward flexion limited to 15 degrees during the period on appeal. The Board resolves doubt in the Veteran's favor on this material issue and finds that an initial rating of 40 percent, but no higher, is warranted. 38 U.S.C. § 5107(b). An even higher rating is not warranted as the Veteran does not have unfavorable ankylosis as shown in the above reports. In this regard, the 2020 examination shows that while the Veteran has pain and functional impairment because of his limited range of motion, he is able to perform some range of motion which demonstrates that he does not have ankylosis. See 38 C.F.R. § 4.71a, Note (5) ("unfavorable ankylosis is a condition in which... the entire thoracolumbar spine... is fixed in flexion or extension"). Additionally, he has testified that while his flare-ups cause him to lay down, he does not assert that his spine is ankylosed. A higher rating of 60 percent for IVDS is not warranted as he had not had incapacitating episodes with total duration of at least six weeks during the past 12 months. The Veteran has not had IVDS that required bed rest per the controlling regulation. The Board has also considered whether an even higher rating would be warranted based on the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. See Chavis v. McDonough, 34 Vet. App. 1, 7 (2021) (stating the factors may show "a higher evaluation than one based solely on limited motion if a claimant demonstrates functional loss equivalent to that contemplated by the higher evaluation."). Here, the Veteran has asserted that he has severe flare-ups that occur two to three times per week. Additionally, the examinations show functional limitations with limited standing, sitting, prolonged walking, bending, squatting and heavy lifting. Although he has had flare-ups where he needs to rest, his flare-ups can be alleviated by medication, ice and hot packs, and massages. There is no indication, nor do the Veteran and his representative contend, that his functional loss is equivalent to an even higher rating (favorable/unfavorable ankylosis). The Veteran is able to ambulate. As such, when viewing his functional loss and limitations during the period on appeal as a whole, the Board finds his symptoms to be more nearly approximated by the now assigned 40 percent rating and not a higher rating. As such, a rating in excess of 40 percent is not warranted. Also, the Board acknowledges that specific range of motion for passive range of motion and in non-weight bearing results were not reported. However, pain was noted during such testing and the Veteran now receives the highest rating based on limited range of motion as such the Board deems this to be nonprejudicial. 7. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve). 8. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy (sciatic nerve). The Veteran receives initial ratings of 20 percent for right and left lower extremity radiculopathy (sciatic nerve), both effective February 14, 2020. Complete paralysis of the sciatic nerve exists when the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. This is evaluated as 80 percent disabling. Severe incomplete paralysis with marked muscular atrophy is evaluated as 60 percent disabling. Moderately severe paralysis is evaluated as 40 percent disabling. Moderate paralysis is evaluated as 20 percent disabling, and mild paralysis is 10 percent disabling. 38 C.F.R. § 4.124a, Code 8520. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note [to the prior rating schedule]. The words "mild," "moderate," and "severe" as used in the various diagnostic codes 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. 38 C.F.R. § 4.6. In the absence of an express definition, words are given their ordinary meaning. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (citations omitted). "Mild" means "not violent, severe, or extreme; slight or gentle." Mild, Cambridge Dictionary Online, https://dictionary.cambridge.org/us/dictionary/english/mild (last visited Jan. 6, 2022). The definitions for "moderate" include of average or medium quantity, quality, or extent. WEBSTER'S II NEW COLLEGE DICTIONARY 704 (1995). Additionally, moderate is generally defined as "tending toward the mean or average amount." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 787 (11th ed. 2003). at 798. Finally, severe is generally defined as "of a great degree" or "serious." Id. at 1140. Based on the foregoing, moderately severe, therefore, could be construed as falling beyond or outside of the mean or average amount while falling short of being a great degree or serious. VA has recognized that moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. In Miller v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that "[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level." 28 Vet. App. 376, 380 (2017). Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by such organic changes 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. Tic douloureux may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. His most recent examination is from February 2020. He had right hip flexion strength of 4/5 (active movement against some resistance). He did not have muscle atrophy. His deep tendon reflexes were normal (2+). His sensation testing was normal. He had positive bilateral straight leg raising testing. He had severe intermittent pain, paresthesias and/or dysesthesias, and numbness for his right lower extremity, and moderate for his left lower extremity. The sciatic nerve was involved. The examiner reported moderate bilateral radiculopathy. The Board finds that an initial rating of 40 percent, but no higher, for right lower extremity radiculopathy (sciatic nerve) is warranted as the competent and probative evidence is in approximate balance (or is nearly equal). He had positive straight leg raising. At the 2020 examination, the Veteran had muscle weakness (4/5) in addition to severe symptoms. The Board acknowledges the examiner reported moderate radiculopathy, but the Board finds that his severe symptoms are more nearly approximated by the 40 percent rating. A rating higher than 40 percent is not warranted as there must be severe incomplete paralysis of the sciatic nerve, which in turn requires marked muscular atrophy. However, there is no evidence of atrophy of the muscles affected by the sciatic nerve on any examination. In fact, the examination states that there is no atrophy. Moreover, the Veteran's examinations do not show complete paralysis at any time during the period on appeal. As such, the evidence reflects the Veteran has moderately severe incomplete paralysis of the sciatic nerve. Additionally, the Board finds that a rating in excess of 20 percent is not warranted for the left lower extremity. The Veteran did not have muscle atrophy or tropic changes. Moreover, he did not have severe radiculopathy symptoms as shown in the examination report. Indeed, the examination report reflected, at most, moderate symptoms, such as intermittent pain. Overall, this examination report reflects the left lower radiculopathy is moderate severity or "tending toward the mean or average amount," rather than moderately severe or "beyond or outside of the mean or average amount while falling short of being a great degree." The Board finds this evidence to be competent and probative as it was gathered by medical professionals who physically examined the Veteran. The Veteran also does not contend that his symptoms are more nearly approximated by a higher rating of moderately severe. As such, a rating in excess of 20 percent is not more nearly approximated or warranted. 38 C.F.R. §§ 4.3, 4.7. 9. Entitlement to an initial rating in excess of 10 percent for a right thigh strain (limited adduction). 10. Entitlement to an initial compensable rating prior to February 14, 2020, and 20 percent thereafter for a right thigh strain (limited flexion). 11. Entitlement to an initial rating in excess of 10 percent for a right thigh strain (limited extension). The Veteran receives a 10 percent rating for limited extension under DC 5251, a 10 percent rating for limited adduction under 5253 from February 14, 2020, onward, and a noncompensable rating for limited flexion prior to February 14, 2020, and 20 percent thereafter under DC 5252. Under Diagnostic Code (DC) 5251, a maximum 10 percent rating is provided for extension limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251. Under DC 5252, a 10 percent disability rating is warranted for flexion of the thigh that is limited to 45 degrees; a 20 percent rating is warranted for flexion of the thigh that is limited to 30 degrees; a 30 percent rating is warranted for flexion of the thigh that is limited to 20 degrees; and a 40 percent rating is warranted for flexion of the thigh that is limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Under Diagnostic Code 5253, impairment of the thigh may be rated based on limitation of abduction, limitation of adduction, or limitation of rotation. A 10 percent rating will be assigned for limitation of rotation where the individual cannot toe-out more than 15 degrees on the affected leg, or for limitation of adduction where the individual cannot cross the legs. A 20 percent rating will be assigned for limitation of abduction where there is motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. Prior to the regulatory change, under DC 5255 (femur, impairment of), the current 20 percent rating requires malunion of the femur moderate knee or hip disability. A 30 percent rating requires marked knee or hip disability. A 60 percent rating requires either a fracture of the surgical neck of the femur with false joint or a fracture of the shaft or anatomical neck of the femur with nonunion, but without loose motion, and with weightbearing preserved with the aid of a brace. An 80 percent rating requires a fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture). 38 C.F.R. § 4.71a, DC 5255. As of February 7, 2021, under the amended criteria, the DC 5255 deleted the criteria for 10 through 30 percent ratings ("malunion of femur") and replaced instead with the following: "Evaluate under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5250-5254 for the hip, whichever results in the highest evaluation." With regards to the criteria for a 60 percent and an 80 percent rating, they are identical to those of the pre-amended version of DC 5255. The Veteran underwent an examination in April 2016. He reported sharp, stabbing flare-ups. He had flexion of 110 degrees, extension of 20 degrees, abduction of 45 degrees, adduction of 25 degrees, external rotation of 60 degrees, and internal rotation of 40 degrees. His adduction was not so limited that he could not cross his legs. His range of motion did not contribute to functional loss. He had pain on flexion and extension. He did not have pain with weight-bearing or evidence of crepitus. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. He did not have ankylosis. He did not have malunion or nonunion of the femur, flail hip joint or leg length discrepancy. His most recent examination is from February 2020. He reported daily severe flare-ups. They would be caused by driving or sitting too long, walking long distance or certain motions. They were alleviated by hot and cold packs, medication, and elevation. He reported functional loss with difficulty for sitting, standing, walking for longer period, difficulty driving, bending, squatting, lifting, and with stairs. He had flexion of 30 degrees, extension of 20 degrees, abduction of 20 degrees, adduction of 15 degrees, and external/internal rotation of 25 degrees. He had pain on all ranges of motion that contributed to functional loss. Adduction was so limited that he could not cross his legs. He had pain on weight bearing. He was not able to perform three times repetitive use testing due to pain. The examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over time and during flare-ups. His range of motion remained the same. He had disturbance of locomotion, interference with sitting, and interference with standing. He did not have muscle atrophy or ankylosis. He did not have malunion or nonunion of the femur, flail hip joint or leg length discrepancy. He regularly used orthotics. He had pain on passive and non-weight bearing testing. The Board acknowledges specific range of motion findings were not reported for passive and non-weight bearing. However, the examiner found that while pain significantly limited functional ability with repeated use over time and during flare-ups, the Veteran's range of motion remained the same. Additionally, the examiner had found functional loss due to pain affecting the ranges of motion, and still concluded that his range of motion would not be further limited during repeated use over time or during flare-ups. Based on these findings, the Board finds it reasonable to conclude that the range of motion testing would be similar to the findings reported at the examination. Indeed, remanding for the range of motion testing would likely only delay the Veteran's claim for increased hip ratings. The Veteran and his representative testified at the Board hearing. They asserted the 2016 examination did not accurately depict the Veteran's disability during flare-ups. In light of the Veteran's testimony, the Board finds the 2020 examination to be representative of his symptoms and disability picture during the period on appeal. As such, it is assigned greater weight. After review of the competent and probative evidence, the Board finds that an initial rating of 20 percent is warranted for the period on appeal for limited flexion under DC 5252. At the 2020 examination, he had flexion limited to 30 degrees. As the Board has found the 2020 examination to be more representative of the Veteran's disability for the period on appeal, this examination has the most probative value. A rating in excess of 20 percent is not warranted during the period on appeal for limited flexion. He has had greater than 30 degrees of flexion for the period on appeal. Also, the Board finds that an initial rating of 10 percent under 5253 is warranted for the period on appeal. At the 2020 examination, the examiner found that he had limitation of adduction so that he could not cross his legs. The Board has found this examination to have the most probative value for the period on appeal. As such, an initial rating of 10 percent, for the period on appeal is warranted. Additionally, a rating in excess of 10 percent is not warranted. In this regard, he has had abduction of 20 degrees as indicated in the 2020 examination. As such, the evidence does not show abduction lost beyond 10 degrees. The Board has also considered whether even higher ratings would be warranted based on the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. See Chavis v. McDonough, 34 Vet. App. 1, 7 (2021) (stating the factors may show "a higher evaluation than one based solely on limited motion if a claimant demonstrates functional loss equivalent to that contemplated by the higher evaluation."). Here, the Veteran has asserted that he has severe flare-ups that occur daily. Additionally, the examinations show functional limitations with limited standing, sitting, prolonged walking, bending, squatting and heavy lifting. Although he has had flare-ups where he needs to rest, his flare-ups can be alleviated by medication, ice and hot packs, and massages. The Veteran is able to ambulate. While the Veteran's attorney has asserted entitlement to a higher rating, he in part asserted entitlement to a rating of 20 percent. Additionally, the Board is addressing that contention both in extraschedular consideration for limited extension, as well as a separate rating for a muscle group injury. As such, when viewing his functional loss and limitations during the period on appeal as a whole, the Board finds his symptoms to be more nearly approximated by the now assigned 20 percent rating for limited flexion and 10 percent rating for limited adduction during the period on appeal. As such, ratings in excess of the now assigned 20 percent and 10 percent are not warranted. For the Veteran's 10 percent rating for limited extension, the Board finds that the Veteran's right hip limitation of extension is rated at the maximum schedular level. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.71a, DC 5251. The Veteran, through his representative, asserted entitlement to an extraschedular rating. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits of the Director, Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. Recently, the Court revisited the meaning of Thun's first element, holding that it is not "a mechanical test that is satisfied whenever a veteran presents a symptom not expressly listed in the [DC]." Long v. Wilkie, 33 Vet. App. 167 (2020). The key to the first Thun element is exceptionality and requires a "totality of the factors" inquiry. The Court held that "the sole focus of Thun's first step is on the ability of the ratings schedule to evaluate any impairment manifested by the veteran's symptomology" and that symptomology "is exceptional . . . when it is of such nature or severity that conventional ratings tools are not adequate to evaluate it properly." Id. at 174. The Court further noted that "functional effects" are relevant to Thun's second step, while symptoms and functional impairments are the "operative focus" of Thun's first step. Id. at 175. In this matter, the Board finds that referral for extraschedular consideration is not warranted after reviewing the totality of relevant factors, to include relevant medical and lay evidence as well as the applicable diagnostic code's criteria. As noted above, DC 5251 contemplates "limitation of extension" of the thigh. The 10 percent rating accounts for extension limited to 5 degrees. In the Veteran's case, right hip extension has been limited to no worse than 20 degrees; such limitation does not even meet the criteria for a compensable schedular rating under DC 5251. Thus, the Board acknowledges his pain but finds that it is contemplated in his current rating for consideration of functional loss due to painful motion. Therefore, the severity of the symptoms associated with his limited hip extension is contemplated by the rating schedule and extraschedular disability ratings are not warranted. To the extent that such other symptomatology would be better contemplated via muscle diagnostic code, the Board remands that issue below. Separate ratings are not warranted under Diagnostic Codes 5250, 5254, or 5255, as the weight of the competent and probative evidence, to include the above examination report is against finding ankylosis (or functional ankylosis), hip flail joint, or impairment of the femur. See 38 C.F.R. § 4.71a, DCs 5250, 5254, 5255. TDIU 12. Entitlement to a total rating based on individual unemployability (TDIU). A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "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 v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran has several service-connected disabilities, to include OSA rated at 50 percent, lumbosacral strain at 40 percent and various other disabilities that have 10 to 20 percent ratings. He now has had a combined rating of 70 percent of higher from June 13, 2011, onward. Therefore, his combined evaluation for compensation due to his service-connected disabilities meets the percentage rating standards for TDIU under 38 C.F.R. § 4.16(a) from June 13, 2011, onward. The Veteran's VA Form 21-8940 shows he last worked in June 2017 as a locomotive switchman. He has some college eduction. He also testified regarding the effects his service-connected disabilities had. His prior employment involved heaving lifting and he described it as a physically demanding job. He took medication to alleviate the pain that would occasionally cause dizziness or make him less alert. His lack of sleep from his OSA would cause headaches and hindered his job performance. A private vocational assessment was submitted in January 2022. Based on a thorough review of the records, as well as an interview with the Veteran, examiner concluded that he would be unable to perform substantially gainful employment, to include unskilled sedentary employment from June 2017 onward. The assessor noted that his prior positions were medium to heavy level for physical demands. In this case, the record reflects that the Veteran suffered from service-connected disabilities which hindered his ability to maintain gainful employment from June 1, 2017, onward. Although the record is unclear as to when exactly in June the Veteran stopped working from the VA Form 21-8940, the Board resolves reasonable doubt in his favor and finds that a June 1 date is appropriate. 38 U.S.C. § 5107(b). As reported above, the Veteran only has experience in physically intensive positions. He has a multitude of service-connected physical disabilities, to include his lumbar spine, bilateral knees, right hip, and bilateral lower extremity radiculopathy disabilities. He used medication which affected him on the job. Additionally, his service-connected OSA caused daytime headaches. The Board acknowledges the vocational assessor's opinion that he would not be able to work in a sedentary position. The Board also finds that even if he could work in such a position, his career has been involved in physically intensive positions, and there is no indication from the claims file that he has any experience in a sedentary role. He would likely still need to take medication for his service-connected disabilities and his headaches from OSA would likely remain. Indeed, the record does not reflect that the Veteran has work experience in a sedentary position that would be appropriate for one with his level of service-connected disability and their impacts. As such, the Board finds that his service-connected disability prevented him from being able to secure or follow a substantially gainful occupation from June 1, 2017, onward. REASONS FOR REMAND Entitlement to a separate rating for a right thigh muscle group disability is remanded. The Veteran's attorney asserted entitlement to an extraschedular rating for his right rip disability at the Board hearing. However, the Board views this claim as more for a separate rating for a muscle group injury. In this regard, the Veteran's attorney contended that the Veteran had loss of muscle strength. Although a muscle group examination was performed in 2016, the Board finds that a new examination would be beneficial to assess the Veteran's current disability picture. This matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing #1, schedule the Veteran for a muscle injuries examination to evaluate the current extent and severity of his right hip, with specific regard to affected muscle groups. Any studies, tests, and evaluations deemed necessary should be performed. (Continued on the next page) Inform the examiner above that a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.