INTERVERTEBRAL DISC SYNDROME (IVDS)

C.A. SKOW · 2023 · Case ID: 23062366

DENIED

Summary

The veteran, who served on active duty from January 1983 to January 1985, appeals rating decisions concerning his lumbar spine disability and related radiculopathies. The appellant, the veteran's surviving child, contests the denial of increased ratings for lumbar spine disability, right and left leg sciatic nerve radiculopathy, and right and left leg femoral radiculopathy. The veteran also sought a total disability rating based on individual unemployability (TDIU). The Board reviewed multiple VA and private medical examinations, treatment records, and the veteran's testimony. For lumbar spine disability, the Board found that the evidence did not meet the criteria for unfavorable ankylosis or disabling Intervertebral Disc Syndrome (IVDS) with incapacitating episodes requiring physician-prescribed bed rest, thus denying a rating higher than the existing 40 percent. For sciatic nerve radiculopathy, the Board granted a 60 percent rating for the left lower extremity from January 13, 2021, finding severe incomplete paralysis with marked muscular atrophy, but denied higher ratings for the right lower extremity and prior ratings for the left lower extremity, citing lack of complete paralysis or moderately severe incomplete paralysis. Femoral radiculopathy claims were denied due to insufficient evidence of moderate incomplete paralysis. The TDIU claim was denied because the veteran was substantially gainfully employed, exceeding the poverty threshold and not working in a protected environment, despite meeting the schedular criteria for TDIU. The Board found the veteran's lay testimony regarding symptoms to be competent and credible but assigned greater probative value to the VA and private examination reports.

Rationale

Evidence does not show unfavorable ankylosis of the entire thoracolumbar spine.; Evidence does not show IVDS with incapacitating episodes requiring physician-prescribed bed rest.; Lay and medical evidence do not reflect symptoms of immobility or fixation.; Veteran's ROM retained despite pain and functional loss.

Special Benefit

TDIU

Diagnostic Code

5243

Docket No.

13-27 261

Full Decision Text

Citation Nr: 23062366
Decision Date: 11/24/23 Archive Date: 11/24/23

DOCKET NO. 13-27 261
DATE: November 24, 2023

ORDER

A rating in excess of 40 percent for degenerative disc disease L4-5, left, spinal stenosis, post laminectomy syndrome, and herniated nucleus pulposus L-S spine, (hereinafter lumbar spine disability), is denied.

An initial rating in excess of 60 percent for sciatic nerve radiculopathy of the right lower extremity (RLE), secondary to service-connected lumbar spine disability, is denied.

An initial rating in excess of 20 percent for sciatic nerve radiculopathy of the left lower extremity (LLE), secondary to service-connected lumbar spine disability, prior to January 13, 2021, is denied.

A rating of 60 percent, but no higher, for sciatic nerve radiculopathy of the LLE, secondary to service-connected lumbar spine disability, from January 13, 2021, is granted.

An initial rating in excess of 10 percent for femoral radiculopathy of the RLE, secondary to service-connected lumbar spine disability, is denied.

An initial rating in excess of 10 percent for femoral radiculopathy of the LLE, secondary to service-connected lumbar spine disability, is denied.

A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran's lumbar spine disability has not been more nearly manifested by unfavorable ankylosis of the entire thoracolumbar spine; or, intervertebral disc syndrome (IVDS), with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months that requires bed rest prescribed by a physician and treatment by a physician.

2. The Veteran's sciatic nerve radiculopathy of the RLE has not been more nearly manifested by complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.

3. Prior to January 13, 2021, the Veteran's sciatic nerve radiculopathy of the LLE was not more nearly manifested by moderately severe incomplete paralysis.

4. From January 13, 2021, the Veteran's sciatic nerve radiculopathy of the LLE is more nearly manifested by severe, with marked muscular atrophy, incomplete paralysis.

5. The Veteran's femoral nerve radiculopathy of the RLE has not been more nearly manifested by moderate incomplete paralysis.

6. The Veteran's femoral nerve radiculopathy of the LLE has not been more nearly manifested by moderate incomplete paralysis.

7. During the appeal period the Veteran was substantially gainfully employed, earning in excess of the poverty threshold for one person, and not working in a protected work environment.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

2. The criteria for an initial disability rating in excess of 60 percent for sciatic nerve radiculopathy of the RLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

3. Prior to January 13, 2021, the criteria for an initial disability rating in excess of 20 percent for sciatic nerve radiculopathy of the LLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

4. From January 13, 2021, the criteria for a disability rating of 60 percent, but no higher, for sciatic nerve radiculopathy of the LLE are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

5. The criteria for an initial disability rating in excess of 10 percent for femoral nerve radiculopathy of the RLE have not been met. 38 U.S.C. §§
.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

5. The criteria for an initial disability rating in excess of 10 percent for femoral nerve radiculopathy of the RLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

6. The criteria for an initial disability rating in excess of 10 percent for femoral nerve radiculopathy of the LLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

7. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1983 to January 1985. The Veteran has had a 100 percent combined disability rating since February 2, 2021. The Veteran died in December 2021. The appellant is his surviving child, who has been substituted in this appeal. See Correspondence (February 2022).

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record.

The Board then remanded the claims in May 2020, December 2021, July 2022, and in February 2023 for further development.

Evaluations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board must consider a veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id.; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509.

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 (ROM) 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; 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 criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of ROM testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with [ROM] measurements of the opposite undamaged joint." The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Neither the appellant, nor his representative, has raised any specific argument or contention as to the matters before the Board, and neither has raised any challenges with respect to any deficiencies in the examination reports pertaining to the matters before the Board. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ((holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise
information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Neither the appellant, nor his representative, has raised any specific argument or contention as to the matters before the Board, and neither has raised any challenges with respect to any deficiencies in the examination reports pertaining to the matters before the Board. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ((holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

1. Entitlement to a rating in excess of 40 percent for lumbar spine disability.

A November 1985 rating decision granted service connection for lumbar spine disability and assigned an initial noncompensable rating. A December 1987 rating decision then granted an initial 20 precent rating.

In May 2010, VA received the Veteran's claim for increase for his service-connected lumbar spine disability. See VA Form 21-526b (May 2010). A May 2011 rating decision denied a rating in excess of 20 percent for lumbar spine disability. This appeal arises from the Veteran's disagreement with the May 2011 rating decision. See VA Form 21-4138 (June 2011). During the appeal, a May 2021 rating decision granted a 40 percent rating for lumbar spine disability, effective May 13, 2010 (date of claim for increase).

The Veteran, and his then-representative, contends that he is entitled to a higher rating for his lumbar spine disability. Specifically, at the Board hearing, the Veteran testified that complications, such as numbness of the bilateral lower extremity (BLE), of his disability have worsen to the extent that it has affected his ability to walk. See Hearing Transcript 4-9 (December 2019).

The Board concludes that the evidence of record persuasively weighs against finding that the Veteran's lumbar spine disability is more nearly manifested by unfavorable ankylosis of the entire thoracolumbar spine; or, IVDS, with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months that requires bed rest prescribed by a physician and treatment by a physician. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. Thus, the criteria for a rating in excess of 40 percent are not met at any time during this appeal. Hart, 21 Vet. App. at 509.

The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spinel and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note (1).

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5).

Here, competent, credible evidence has not been presented that persuasively shows ankylosis or the functional equivalent during this appeal; or that he had IVDS with incapacitating episodes having a total duration of at least 6 weeks during a past 12 months period that required bed rest prescribed by a physician and treatment by a physician.

For instance, VA-obtained examination report, dated in January 2021, shows that the Veteran reported low back pain, described as severe and constant, inability to lift, and that he could not walk or stand
94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5).

For instance, VA-obtained examination report, dated in January 2021, shows that the Veteran reported low back pain, described as severe and constant, inability to lift, and that he could not walk or stand for prolong periods of time. The report does not reveal that the Veteran reported flares of the lumbar spine. On examination, the clinician noted no guarding, muscle spasm, and ankylosis. The report of examination reveals a finding for IVDS with episodes of bed rest having a total duration of at least 6 weeks during the past 12 months; but, in elaborating, the clinician noted that the Veteran reported requiring bed rest one week per month, on average, spread throughout the month, following long flights or strenuous/vigorous activities like prolonged walking or standing. The bed rest appears to be self-prescribed. ROM testing revealed forward flexion to 45 degrees, with no additional loss of function or ROM after observed repetitive use. Passive ROM of the spine was found to be the same as active ROM.

VA-obtained examination report, dated in February 2021, shows that the Veteran reported symptoms of low back pain, numbness in legs, leg atrophy, and gait instability. The report does not reveal that the Veteran reported flares of the lumbar spine. On examination, the clinician noted localized tenderness not resulting in abnormal gait or abnormal spinal contour, and muscle spasm and guarding resulting in abnormal gait or abnormal spine contour. The report of examination is negative for a finding for ankylosis and IVDS. ROM testing revealed forward flexion to 30 degrees, with no additional loss of ROM after observed repetitive use for forward flexion. The report reveals that the clinician found passive ROM the same as active ROM, forward flexion to 30 degrees.

Private examination report, dated in January 2020, shows that the Veteran reported flares of the lumbar spine, described as constant back pain, numbness, and muscle stiffness. The Veteran also reported that he could not run, play tennis, walk in the woods, or sit or stand for work due to lumbar spine disability. On examination, the clinician noted no ankylosis, and abnormal spinal contour and gait due to muscle spasm and neuropathy. The report of examination reveals a finding for IVDS with episodes of bed rest having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. ROM testing revealed forward flexion to 30 degrees, with additional loss of function or ROM after observed repetitive use. The report does not show findings or measurements for passive ROM. With regard to the Veteran's reports of experiencing flares, the report shows an estimated forward flexion ROM to 10 degrees based on the information obtained, including the lay statements of the Veteran.

Private examination report, dated in October 2020, shows that the Veteran reported flares of the lumbar spine, described as little activities making his pain worse, and functional loss or functional impairment, described as problems walking and atrophy of the leg. On examination, the clinician noted no ankylosis, and abnormal spinal contour and gait due to muscle spasm, guarding, and neuropathy. The report of examination is negative for a finding for IVDS. The report does not reveal ROM testing, active or passive, because the Veteran reported being unable to move his back. With regard to the Veteran's reports of experiencing flares, the report does not show that the clinician provided estimated findings based on the information obtained, including the lay statements of the Veteran.

Treatment records reflect complaints and treatment for low back pain. The treatment records, however, are negative for findings, complaints, or treatment consistent with unfavorable ankylosis of the entire thoracolumbar spine or IVDS with incapacitating episodes.

At the Board hearing, the Veteran did not contend that his lumbar spine disability was more nearly manifested by unfavorable ankylosis of the entire thoracolumbar spine or that it approximated the next higher criteria for IVDS; rather he argued that his disability warranted a higher rating due to symptoms or complications of his lumbar spine disability, to include constant pain, stiffness, numbness and limited motion. See Hearing Transcript (December 2019).

Based on the foregoing and for reasons explained below, the Board
complaints and treatment for low back pain. The treatment records, however, are negative for findings, complaints, or treatment consistent with unfavorable ankylosis of the entire thoracolumbar spine or IVDS with incapacitating episodes.

Based on the foregoing and for reasons explained below, the Board finds that a rating in excess of 40 percent for the Veteran's lumbar spine disability is not warranted as the record does not indicate that his disability is more nearly manifested by unfavorable ankylosis of the entire thoracolumbar spine; or, IVDS, with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months that requires bed rest prescribed by a physician and treatment by a physician.

Initially, the Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, such as pain, functional loss due to pain, pain during flare-ups, and pain during repetitive use over time, etc. Additionally, the Veteran is competent to report treatment received for his disability, to include self-treatment. His reports, in this regard, are both competent and credible. Jandreau v. Nicholson, 492 F.3d. 1372, 1377 (2007). Notwithstanding the Veteran's lay reports of symptoms and noted functional loss, the Board finds that it would not result in a higher rating for his disability for the following reasons.

First, the record does not show that the Veteran's lumbar spine disability has been manifested by unfavorable ankylosis of the entire thoracolumbar spine. In this regard, multiple examiners, with consideration of factors such as functional loss caused by pain during flare-ups or after repeated use, have found, for the most part, that the Veteran has retained some ROM in all planes, to include forward flexion. The Board also observes that this finding is medical in nature, and the Veteran has not been shown to have the requisite medical training and expertise to offer competent medical findings, conclusions, or opinions. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372. Furthermore, examiners, throughout, have consistently found that the Veteran has not had ankylosis of the thoracolumbar spine, to include the October 2020 private examiner. The Board notes that the requirement of establishing ankylosis under the General Rating Formula for purposes of assigning a higher rating can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). In this regard, "ankylosis is, in essence, a complete limitation of motion." Id. at 10. Thus, an evaluation based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis. Id. at 11. In this case, although the record reflects that the Veteran has had loss of ROM in all planes, to include additional loss of ROM during periods of flare-ups, he still retained some ROM in all planes and neither the lay nor the medical evidence reflects symptoms of immobility or fixation in that is favorable or unfavorable in character. Moreover, even conceding that the Veteran has functional ankylosis, VA-obtained medical opinion, dated in August 2023, shows that his ankylosis did not result in "nerve root stretching." The Board observes that unfavorable ankylosis is defined as a condition in which the entire spine or an entire spinal segment is fixed in flexion or extension and the ankylosis results in one or more of the following: Difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, Note 5. Here, the record does not reveal that the Veteran's alleged functional ankylosis resulted in difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to
in flexion or extension and the ankylosis results in one or more of the following: Difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, Note 5. Here, the record does not reveal that the Veteran's alleged functional ankylosis resulted in difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Accordingly, the Board concludes that the evidence of record is against finding that the Veteran's lumbar spine disability has been manifested by unfavorable ankylosis of the entire thoracolumbar spine, to include the functional equivalent of ankylosis.

Next, the record does not show that the Veteran's lumbar spine disability has been manifested by IVDS, with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months that requires bed rest prescribed by a physician and treatment by a physician. Although VA-obtained examination report, dated in January 2021, shows that the clinician found IVDS with episodes of bed rest having a total duration of at least 6 weeks during the past 12 months, the Veteran's treatment records do not support this finding. See also Disability Benefits Questionnaire - Veteran Provided (October 2020) (showing no finding for IVDS, but also showing at least 6 weeks, in total duration, of all incapacitating episodes over the past 12 months). Indeed, at the Board hearing, the Veteran testified that Dr. Raz, a VA physician, has been his primary care provider for his lumbar spine, however, a review of his VA treatment records does not reveal that his lumbar spine was manifested by incapacitating episodes having a total duration of at least 6 weeks during the past 12 months that requires bed rest prescribed by a physician and treatment by a physician. See Hearing Transcript 5-6 (December 2019). At most, the record reveals lay reports from the Veteran stating that he rested after prolong travel, standing, or walking; however, the record is absent of incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In other words, if the Veteran was prescribed bed rest and treatment by a VA physician, then such would be annotated in his VA treatment records. Thus, although the record shows that the Veteran has been found to have IVDS of the thoracolumbar spine; the record, nevertheless, does not reveal that IVDS of the thoracolumbar spine has been manifested by acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that the amendments to Diagnostic Code 5243, which went into effect on February 7, 2021, do not include substantive changes to the rating criteria, as discussed above. See 85 Fed. Reg. 76462. Thus, they do not alter the Board's evaluation of the Veteran's lumbar spine disability for the period since the effective date of the amendments.

The Board assigns greater probative value to the VA-obtained and private examination reports than to the Veteran's uncorroborated medical opinion because the examination reports were prepared by clinicians who possess the necessary education, training, and expertise to provide the requested findings and conclusions. The examination reports, moreover, are probative because they are based on examination of the Veteran and the providers had medical knowledge as to the nature of the Veteran's treatment. Further, in this instance, it is clear from the medical evidence that the clinicians considered the subjective complaints of the Veteran. In particular, the clinicians' medical findings and conclusions, and treatment records, do not reveal that the Veteran's lumbar spine disability was manifested by the next higher disability rating. 38 C.F.R. § 4.71a.

The Veteran's decreased ROM of the thoracolumbar spine in all planes of movement, and symptoms of, as well as the associated functional impairment, which includes difficulties with bending
to provide the requested findings and conclusions. The examination reports, moreover, are probative because they are based on examination of the Veteran and the providers had medical knowledge as to the nature of the Veteran's treatment. Further, in this instance, it is clear from the medical evidence that the clinicians considered the subjective complaints of the Veteran. In particular, the clinicians' medical findings and conclusions, and treatment records, do not reveal that the Veteran's lumbar spine disability was manifested by the next higher disability rating. 38 C.F.R. § 4.71a.

The Veteran's decreased ROM of the thoracolumbar spine in all planes of movement, and symptoms of, as well as the associated functional impairment, which includes difficulties with bending, prolonged sitting, standing, and walking, are contemplated by the current rating under the General Rating Formula. See 38 C.F.R. § 4.71a; see also 38 C.F.R. §§ 4.40, 4.45. Such symptoms do not in themselves show that the criteria for a rating higher than 40 percent are met, which requires unfavorable ankylosis of the entire thoracolumbar spine or, IVDS, with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months that requires bed rest prescribed by a physician and treatment by a physician. Thus, consideration of functional loss of the thoracolumbar spine due to factors such as pain, including during flare-ups or with repeated use over time, does not alter the conclusion, See DeLuca, 8 Vet. App. at 206-07; 38 C.F.R. §§ 4.40, 4.45.

Regarding neurological impairment, the Veteran has already been granted service connection for sciatic and femoral nerve radiculopathy of the BLE; and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his lumbar spine disability.

As the evidence of record shows no distinct period where the disability exhibited symptoms that would warrant higher evaluations than assigned, there is no basis to stage the rating. See Hart, 21 Vet. App. 505; Fenderson, 12 Vet. App. at 126.

Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to increased ratings for (1) RLE sciatic nerve radiculopathy, rated 60% from May 13, 2010; (2) LLE sciatic nerve radiculopathy, rated at 20% prior to January 13, 2021, and 40% therefrom; (3) RLE femoral radiculopathy, rated 10 percent from February 2, 2021; and (4) LLE femoral neuropathy, rated 10% from February 2, 2021.

The Veteran, and his then-representative, seeks a higher rating for symptomatology as related to his lumbar spine disability. At the Board hearing, the Veteran testified to experiencing numbness in the feet that made his legs unstable. See Hearing Transcript at 4-5 (December 2019).

The Board concludes that the evidence of record persuasively weighs against finding that (1) RLE sciatic nerve radiculopathy is more nearly manifested by complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost; (2) prior to January 13, 2021, LLE sciatic nerve radiculopathy was more nearly manifested by moderately severe incomplete paralysis; (3) RLE and/or LLE femoral radiculopathy is more nearly manifested by moderate incomplete paralysis. However, the Board also concludes that the evidence supports the assignment of a 60 percent rating, but no higher, from January 13, 2021, for the Veteran's LLE sciatic nerve radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8526.

The Veteran's sciatic nerve radiculopathy of the BLE has been rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, sciatic nerve. The Veteran's femoral nerve radiculopathy of the BLE has been
However, the Board also concludes that the evidence supports the assignment of a 60 percent rating, but no higher, from January 13, 2021, for the Veteran's LLE sciatic nerve radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8526.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a.

Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of quadriceps extensor muscles is rated 40 percent disabling. 38 C.F.R. § 4.124a.

The words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

VA-obtained examination report, dated in January 2021, reveals that the Veteran reported severe and constant pain. Upon examination, the Veteran was found to have normal muscle strength for bilateral hip flexion and less than normal muscle strength (rated as 4/5 strength) for bilateral knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension; hyperactive without clonus reflex for bilateral knee and ankle; and normal sensory for the bilateral upper anterior thigh and thigh/knee, and decreased sensory for the bilateral lower leg/ankle and foot/toes. The report also notes a positive finding for muscle atrophy. Regarding signs or symptoms of radiculopathy, the report reveals positive findings for moderate constant pain for the BLE, severe intermittent pain for the BLE, severe paresthesias and/or dysesthesias for the BLE, and severe numbness for the BLE. The clinician also indicated that the Veteran experienced shooting pains down both lower extremities and numbness and tingling in both legs and feet. Next, based on subjective and objective findings, the clinician concluded that the Veteran experienced a moderate severity for the BLE. The clinician also concluded that only the sciatic nerve in both sides was involved in the radiculopathy.

VA-obtained examination report, dated in February 2021, reveals that the Veteran reported low back pain. numbness
radiculopathy, the report reveals positive findings for moderate constant pain for the BLE, severe intermittent pain for the BLE, severe paresthesias and/or dysesthesias for the BLE, and severe numbness for the BLE. The clinician also indicated that the Veteran experienced shooting pains down both lower extremities and numbness and tingling in both legs and feet. Next, based on subjective and objective findings, the clinician concluded that the Veteran experienced a moderate severity for the BLE. The clinician also concluded that only the sciatic nerve in both sides was involved in the radiculopathy.

VA-obtained examination report, dated in February 2021, reveals that the Veteran reported low back pain. numbness in legs, leg atrophy, and gait instability. Upon examination, the Veteran was found to have normal muscle strength for bilateral knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension, and less than normal muscle strength (rated as 4/5 strength) for bilateral hip flexion; hyperactive reflex for bilateral knee and absent reflex for bilateral ankle; and normal sensory for the bilateral upper anterior thigh, thigh/knee, lower leg/ankle and foot/toes. The report also notes a positive finding for muscle atrophy in the right thigh and calf. Regarding signs or symptoms of radiculopathy, the report reveals positive findings for mild intermittent pain for the BLE, mild numbness for the RLE, and negative findings for constant pain for the BLE, paresthesias and/or dysesthesias for the BLE, and numbness for the LLE. The clinician also indicated that the Veteran experienced absent achilles reflexes. The clinician also concluded that only the femoral nerve in both sides was involved in the radiculopathy.

Private examination report, dated in November 2019, reveals that the Veteran reported pain and numbness in his lower extremities. Upon examination, the Veteran was found to have less than normal muscle strength (rated as 3/5 and 4/5 strength); normal reflex for the left knee, hypoactive reflex for the right knee, and absent reflex for the bilateral ankle; and normal sensory for the bilateral upper anterior thigh and thigh/knee, and decreased sensory for the bilateral lower leg/ankle and foot/toes. Regarding signs or symptoms of radiculopathy, the report reveals positive findings for severe constant pain for the RLE, mild constant pain for the LLE, moderate intermittent pain for the RLE, mild intermittent pain for the LLE, severe paresthesias and/or dysesthesias for the RLE, mild paresthesias and/or dysesthesias for the LLE, severe numbness for the RLE, and moderate numbness for the LLE.

Private examination report, dated in January 2020, again reveals that the Veteran reported back pain that has progressed to causing pain and numbness in his lower extremities. Upon examination, the Veteran was found to have less than normal muscle strength (rated as 3/5 and 4/5 strength); normal reflex for the left knee, hypoactive reflex for the right knee, and absent reflex for the bilateral ankle; and normal sensory for the bilateral upper anterior thigh and thigh/knee, and decreased sensory for the bilateral lower leg/ankle and foot/toes. The report also notes a positive finding for muscle atrophy due to neuropathy. Regarding signs or symptoms of radiculopathy, the report reveals positive findings for severe constant pain for the RLE, mild constant pain for the LLE, severe intermittent pain for the RLE, moderate intermittent pain for the LLE, moderate dull pain for the BLE, severe paresthesias and/or dysesthesias for the RLE, mild paresthesias and/or dysesthesias for the LLE, and moderate numbness for the BLE. Next, based on subjective and objective findings, the clinician concluded that the Veteran experienced a severe severity for the RLE and a mild severity for the LLE. The clinician also concluded that only the sciatic nerve in both sides was involved in the radiculopathy.

Private examination report, dated in October 2020, reveals that the Veteran reported leg weakness and paresthesias. Upon examination, the Veteran was found to have less than normal muscle strength; normal reflex for the bilateral knee, and absent reflex for the bilateral ankle; and normal sensory for the bilateral upper anterior thigh, and decreased sensory for the bilateral thigh/knee, lower leg/ankle and foot/toes. Regarding signs or symptoms of radiculopathy, the report reveals positive findings for severe constant pain, paresthesias and/or dysesthesias, and numbness for the BLE. Next, based on subjective and objective findings, the
the sciatic nerve in both sides was involved in the radiculopathy.

Private examination report, dated in October 2020, reveals that the Veteran reported leg weakness and paresthesias. Upon examination, the Veteran was found to have less than normal muscle strength; normal reflex for the bilateral knee, and absent reflex for the bilateral ankle; and normal sensory for the bilateral upper anterior thigh, and decreased sensory for the bilateral thigh/knee, lower leg/ankle and foot/toes. Regarding signs or symptoms of radiculopathy, the report reveals positive findings for severe constant pain, paresthesias and/or dysesthesias, and numbness for the BLE. Next, based on subjective and objective findings, the clinician concluded that the Veteran experienced a severe severity for the BLE. The clinician also concluded that only the sciatic nerve in both sides was involved in the radiculopathy.

Treatment records indicate that the Veteran reported symptoms of back pain with radicular features. For example, VA treatment record, dated in April 2020, reflects that the Veteran reported numbness in the left leg for which he sees neurology and neurosurgery for treatment.

Based on the above, the Board finds that the evidence supports the assignment of a 60 percent rating, but no higher, from January 13, 2021, for the Veteran's sciatic nerve radiculopathy of the LLE. However, the Board also finds that the evidence of record persuasively weighs against finding that the Veteran's sciatic nerve radiculopathy of the RLE is more nearly manifested by complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost; that, prior to January 13, 2021, the Veteran's sciatic nerve radiculopathy of the LLE was more nearly manifested by moderately severe incomplete paralysis; and that the Veteran's femoral radiculopathy of the BLE is more nearly manifested by moderate incomplete paralysis.

First, although the lay and medical evidence, overall, reveals reports of radiating pain, numbness, and paresthesias and/or dysesthesias, ranging in severity, from none to severe, the evidence, however, does not show that the Veteran's sciatic nerve radiculopathy of the RLE was manifested by complete paralysis. In this regard, private and VA-obtained examination reports show that the Veteran's sciatic nerve radiculopathy of the RLE is more nearly manifested by incomplete, not complete, paralysis. In other words, although the Veteran had impaired function of his RLE due to sciatic nerve radiculopathy, it was not complete to the extent that the evidence shows that he could not move or control the extremity. For example, treatment record, dated in March 2018, reveals that the Veteran complained of right leg pain and swelling, objective testing showed full ROM for the extremity, normal strength, normal sensation, normal gait, normal reflexes, and no gross deformities. Similarly, the Veteran's Board testimony does not show that he experienced complete paralysis of the RLE. In this regard, the Veteran testified to experiencing a limitation in his ability to walk; however, although limited, he retained active movement of muscles below the knee. See Hearing Transcript 4-5 (showing that the Veteran described himself as an "active guy" that flew all over the country for work).

Second, the evidence does not show that the Veteran's sciatic nerve radiculopathy of the LLE, prior to January 13, 2021, was more nearly manifested by moderately severe incomplete paralysis. In this regard, the record, prior to January 2021, reveals complaints of constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness, ranging in severity, from none to moderate. See, e.g., Disability Benefits Questionnaire-Veteran Provided (March 2020). Although the October 2020 private examination report notes severe constant pain, paresthesias and/or dysesthesias, and numbness for the LLE, the examiner's characterization of the level of impairment is not binding on the Board. See 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."). Here, the clinician's characterizations are not consistent with the evidence of record, as outlined above. Moreover, the Board finds the private examination report of less probative weight when compared to the January 2021 VA-obtain examination report because the private examination report is inconsistent with the Veteran's treatment records, prior examination reports, and Board testimony. Further, the Board notes that the private examination report appears
ias, and numbness for the LLE, the examiner's characterization of the level of impairment is not binding on the Board. See 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."). Here, the clinician's characterizations are not consistent with the evidence of record, as outlined above. Moreover, the Board finds the private examination report of less probative weight when compared to the January 2021 VA-obtain examination report because the private examination report is inconsistent with the Veteran's treatment records, prior examination reports, and Board testimony. Further, the Board notes that the private examination report appears internally inconsistent, inaccurate, or incomplete. For example, the report notes that the Veteran does not have IVDS and then completes questions pertaining to IVDS, even though the clinician did not find IVDS. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (noting that "contradictions in medical evidence . . . may impact the probative value or adequacy of the medical opinion"). Additionally, the clinician does not make attempt to reconcile these internal inconsistencies. With regard to the period from January 13, 2021, the evidence shows that the Veteran's sciatic nerve radiculopathy of the LLE is more nearly manifested by severe, with marked muscular atrophy, incomplete paralysis. In this regard, the overall medical and lay evidence, for this period, demonstrates that the Veteran had severe pathology with marked muscular atrophy of the LLE. Specifically, VA-obtained examination report, dated in January 2021, reveals that the clinician found muscle atrophy and that the Veteran has had "obvious loss of muscle girth and mass" in the BLE. While the term "marked" is not defined in the Rating Schedule, it is defined as "noticeable; obvious; appreciable; distinct; conspicuous." See Webster's New World Dictionary, Third College Edition (1988) at 828. Here, the clinician's finding of "obvious loss of muscle girth and mass" demonstrates "marked" muscle atrophy for the LLE. Further, as noted above, the examination report also notes positive findings for moderate constant pain for the BLE, severe intermittent pain for the BLE, severe paresthesias and/or dysesthesias for the BLE, and severe numbness for the BLE. The evidence, however, does not show complete paralysis of the LLE. As noted above, the lay and medical evidence indicates that the Veteran, although limited, retained active movement of muscles below the knee. Thus, given this, the Board finds that the evidence, from January 13, 2021, shows that the Veteran's sciatic nerve radiculopathy of the LLE is more nearly manifested by severe, with marked muscular atrophy, incomplete paralysis.

Third, the evidence does not show that the Veteran's femoral nerve radiculopathy of the BLE is more nearly manifested by moderate incomplete paralysis. In this regard, the Board notes that examination reports, prior to February 2021, are negative for objective and subjective findings indicative of signs or symptoms of femoral radiculopathy in either lower extremity. Indeed, the prior examination reports show that multiple clinicians (VA and non-VA) found the Veteran's radiculopathy attributable to the sciatic nerve. See, e.g., C&P Exam (January 2021), Disability Benefits Questionnaire - Veteran Provided (October 2020) & Disability Benefits Questionnaire - Veteran Provided (November 2019). Further, although the November 2019 private examination report indicates that the external popliteal (common peroneal) and anterior tibial (deep peroneal) nerves are affected, the January 2020 private examination report (completed by the same clinician) does not reveal that the clinician found that the femoral or other nerve (aside from the sciatic nerve) was affected by the Veteran's lumbar spine disability. Indeed, the report notes that aside from the affected sciatic nerve, the clinician concluded that the Veteran did not have any other objective neurologic abnormalities or findings. The February 2021 examination report, on the other hand, essentially, shows no more than mild pathology. In this regard, clinical evaluation, overall, revealed that the Veteran had normal sensation, hypoactive reflexes for bilateral knee, absent reflexes for bilateral ankle, and about normal muscle strength in the lower extremities. The report also reveals no constant pain and paresthesias and/or dysesthesias for the BLE; mild intermittent pain for BLE; mild numbness for RLE, and no numbness for LLE. Thus, the evidence of record does not more closely approximate the symptom
that aside from the affected sciatic nerve, the clinician concluded that the Veteran did not have any other objective neurologic abnormalities or findings. The February 2021 examination report, on the other hand, essentially, shows no more than mild pathology. In this regard, clinical evaluation, overall, revealed that the Veteran had normal sensation, hypoactive reflexes for bilateral knee, absent reflexes for bilateral ankle, and about normal muscle strength in the lower extremities. The report also reveals no constant pain and paresthesias and/or dysesthesias for the BLE; mild intermittent pain for BLE; mild numbness for RLE, and no numbness for LLE. Thus, the evidence of record does not more closely approximate the symptomatology required for moderate incomplete paralysis of the femoral nerve.

In reaching the foregoing determinations, the Board recognizes the Veteran's sincerely held belief that his disabilities are more severe than reflected by the assigned staged ratings, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. Jandreau, 492 F.3d. 1372. However, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence, to include the multiple examination reports, in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own beliefs regarding the severity of such condition.

The Board has considered all other potentially applicable diagnostic codes, but there is no evidence showing that the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different diagnostic code is not warranted.

In summary, neither the lay nor the medical evidence more nearly reflects the criteria for an initial rating in excess of (1) 60 percent for RLE sciatic nerve radiculopathy; (2) 20 percent for LLE sciatic nerve radiculopathy of LLE prior to January 13, 2021; or (3) in excess of 10 percent for femoral radiculopathy of the BLE. However, the evidence persuasively supports the assignment of a 60 percent rating, but no higher, for LLE sciatic nerve radiculopathy from January 13, 2021.

Accordingly, the claims are denied except as to the award a 60 percent rating, but no higher, for LLE sciatic nerve radiculopathy from January 13, 2021. As the evidence of record shows no distinct period where the disabilities exhibited symptoms that would warrant higher evaluations than assigned, there is no basis to further stage the rating. See Hart, 21 Vet. App. 505. See Fenderson, 12 Vet. App. at 126. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th 776.

3. Entitlement to a TDIU.

A May 2021 supplemental statement of the case and rating decision denied entitlement to a TDIU. The Veteran, and his-then representative, has not explicitly raised the issue of entitlement to a TDIU. Indeed, the Board observes that at the hearing, the Veteran testified to being an "active guy," flying all over the country for work, and working in the entertainment business. See Hearing Transcript at 5 (December 2019).

The Board concludes that the persuasive evidence of record weighs against finding that the Veteran's service-connected disabilities precluded his ability to secure or follow a substantially gainful occupation. 38 U.S.C. §§ 5107, 1155; 38 C.F.R. §§ 4.1, 4.3, 4.16(a), 4.18, 4.19.

A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

Once the schedular criteria outlined above have been met, the remaining question concerns whether the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Id.

If a veteran, such as in this case
the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

If a veteran, such as in this case, is working for the appeal period in question, TDIU is precluded unless such work is marginal and/or protected. That is, substantially gainful employment is defined as work, which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis, including but not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Further, a veteran may be granted TDIU despite being employed and having an income in excess of the poverty line if his or her employment is sheltered. Cantrell v. Shulkin, 28 Vet. App. 382, 389-91 (2017).

To the extent a veteran is unemployed, or employment is deemed marginal and/or protected, the evidence must also establish service-connected disabilities preclude the Veteran's ability from obtaining and/or maintaining substantial gainful employment without consideration of non-service connected disabilities, age, or other non-service related factors.

In that regard, the term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court has determined that this phrase includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

Initially, the Board notes that the Veteran, in this case, met the schedular requirement for a TDIU under 38 C.F.R. § 4.16(a) as of May 13, 2010. See Rating Decision - Codesheet (September 2022).

Turning to the evidence, the record indicates that the Veteran has been fully employed throughout the appeal. See CAPRI (December 2013), Hearing Transcript at 5 (December 2019) & CAPRI (October 2021). The record, in this regard, reveals that he works a full-time job (at least 40 hours a week) and earns a living wage that exceeds the annual income amount established by the U.S. Department of Commerce as the poverty threshold for one person. Stated another way, the record shows that the Veteran works as a senior director at a sports facility and makes "a sh[*]t ton of money." See CAPRI (October 2021). Thus, based on this alone he does not meet the economic component of entitlement to a TDIU.

However, he may still meet the economic component of a TDIU if his employment can be considered marginal. Marginal employment includes, but is not limited to, "a protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16(a)(5).

The regulations do not define a "protected environment." In Arline v. McDonough, 34 Vet. App. 238, 260-61 (2021), the Court noted that Chief Judge Bartley's dissenting opinion provided helpful guidance for assessing the meaning of "employment in a protected environment." The three factors identified by Judge Bartley focused on: (1) The type and extent of the accommodations the employee received at the job; (2) employer behavior but not necessarily intent; (3) economic factors such as the amount of income from the job.

Upon
is not limited to, "a protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16(a)(5).

Upon review of the record, the Board finds that there is no evidence that the Veteran was employed in a "protected environment," or that he was afforded accommodations that effectively rendered that employment "protected" or "sheltered" in nature compared with average work environments and accommodations. In this regard, the record is absent for any service-connected disability accommodations that the Veteran received at the job. Indeed, the Veteran has not raised, and the record does not reasonably show, any accommodations from his employer. To the contrary, the record shows that the Veteran reported that he was susceptible of losing his employment due to nonservice-related disability reasons, such as excessive drinking and his child being incarcerated. See CAPRI (October 2021).

In sum, the persuasive evidence of record reflects that the Veteran secured and followed substantially gainful employment that was not marginal employment or in a protected environment.

Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch, 21 F.4th 776.

Lastly, the Board observes that the agency of original jurisdiction sent the Veteran VA Form 21-8940 in May 2020 and July 2020. A substantially complete VA Form 21-8940 is vital for establishing entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. It concludes with a series of sworn certification statements, and in endorsing it, the veteran attests to his employment status and signals understanding that a TDIU is incompatible with substantially gainful work. Although VA has a duty to assist the Veteran in substantiating his claim, the duty is not a one-way street and claimants are expected to cooperate in the development of their claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). In this instance, the record does not show that the Veteran completed and returned the form. Thus, in not returning the requested information, the Board can reasonably infer that the Veteran was likely substantially gainfully employed as suggested by his treatment records. The Veteran ultimately has the responsibility to present and support a claim for benefits under the laws administered by the Secretary, 38 U.S.C. § 5107(a), and he must accept the legal consequences if he fails to do so. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Griffey, 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.

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