Citation Nr: 1302912 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-21 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent before November 15, 2011, and an initial rating in excess of 40 percent after November 15, 2011 for left leg radiculopathy. 2. Entitlement to total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESSES AT HEARING ON APPEAL The Appellant and the Appellant's spouse ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to November 1979 in the United States Marine Corps, and August 1989 to March 2000 in the United States Army. He served with the Army National Guard from March to June 1988 and in the Army Reserves from December 2001 to August 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The rating decision granted service connection for left leg radiculopathy and assigned a 10 percent initial evaluation, effective September 12, 2007. In an April 2009 supplemental statement of the case rating decision, the RO increased the evaluation for the Veteran's left leg radiculopathy to 20 percent, also effective September 12, 2007. During the pendency of the appeal, in a rating decision in October 2012, the RO increased the rating for left leg radiculopathy from 20 percent to 40 percent, effective November 15, 2011. The Veteran continued his appeal for a higher rating. AB v. Brown, 6 Vet. App. 35, 38 (1993). The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a Veteran's dissatisfaction with an initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as the question currently before the Board was placed in appellate status by a notice of disagreement expressing dissatisfaction with an original rating assignment, the Board has characterized the rating issue on appeal as a claim for higher initial evaluation of an original award. Analysis of this issue therefore requires consideration of the rating to be assigned effective from the date of award of service connection for the claim. The Board notes that originally, the Veteran included an appeal for service connection for a right shoulder condition, bilateral knee conditions, and bilateral hearing loss, but the Veteran withdrew these issues in writing in March 2009. In March 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In March 2011 and October 2011, the Board remanded the case to the RO for additional development requesting the Veteran to identify all medical providers who have treated the Veteran for his left leg neuropathy disability and to provide him with a VA examination to determine what manifestations were caused by the Veteran's service-connected disability and their level of severity. The RO sent a letter to the Veteran requesting identification of medical providers in October 2011 and the VA examination occurred in November 2011. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. During the period on appeal from September 12, 2007 to November 15, 2011, the Veteran's left leg radiculopathy has resulted in decreased sensation (numbness) and pain demonstrating no worse than moderate incomplete paralysis of the sciatic nerve. 2. Since November 15, 2011, the Veteran's left leg radiculopathy has resulted in severe pain, paresethesia, numbness, and objective findings of weakness but there is no evidence of complete paralysis, or severe incomplete paralysis with marked muscular atrophy, or a disability picture that more closely approximates severe incomplete paralysis due to left leg radiculopathy. CONCLUSION OF LAW 1. The criteria for an initial rating in excess of 20 percent for the period from September 12, 2007 to November 15, 2011, for service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for an initial rating in excess of 40 percent from November 15, 2011, to the present for service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). Where, as here, service connection has been granted and the initial disability rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement as to the initial rating assigned does not trigger additional 38 U.S.C.A. § 5103(a) notice. 38 C.F.R. § 3.159(b)(3) (2012). Rather, the Veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The pre-adjudication letter dated in November 2007 advised the Veteran generally how VA rates disabilities. The statement of the case, dated in September 2008, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under those diagnostic codes. The Veteran was thus informed of what was needed not only to achieve the next-higher schedular rating for the disability at issue, but also to obtain all schedular ratings above the initial evaluations that the RO assigned. The Veteran also received a letter dated in September 2009, which contained a copy of the diagnostic code used to rate his disability. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected left leg radiculopathy disability. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran VA examinations in June 2008, September 2009, and November 2011, with an addendum dated in July 2012. In addition, the Board notes a VA examination in June 2010 concerning right leg radiculopathy, but the examiner made pertinent findings regarding the severity of the left leg radiculopathy. The reports of the VA examinations included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Furthermore, since the last VA examinations in November 2011, the Veteran has not asserted, nor does the evidence reflect a material change in the left leg radiculopathy disability. As there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability before the Board since he was last examined, a reexamination is not warranted, and the Board is deciding the appeal on the current record. 38 C.F.R. § 3.327(a). The Board notes that it remanded the case with directions to the RO to ask the Veteran to identify all medical providers who have treated the Veteran for his left leg radiculopathy disability. The RO sent a letter to the Veteran requesting identification of medical providers in October 2011. To date, the Veteran has not responded to the letter or identified any medical providers. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a), and VA clearly advised the Veteran of the need to submit medical evidence of the severity of his left leg radiculopathy disability. The VA's duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In light of the foregoing, the Board will decide the claim based on the evidence that is of record. Legal Criteria-Rating Disabilities A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id., § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). The Veteran's radiculopathy of the left lower extremity is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. A 80 percent rating requires complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term 'incomplete paralysis' with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. Id. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Claim for an Initial Higher Rating for Left Leg Radiculopathy The RO granted service connection in July 2008 for the Veteran's left leg radiculopathy and assigned a 10 percent rating, effective September 12, 2007, the date the Veteran filed his claim. In an April 2009 supplemental statement of the case rating decision, the RO increased the evaluation for the Veteran's left leg radiculopathy to 20 percent, also effective September 12, 2007. During the pendency of the appeal, in a rating decision in October 2012, the RO increased the rating for left leg radiculopathy from 20 percent to 40 percent, effective November 15, 2011, the date of a VA examination. The Veteran contends that at all relevant times, the severity of his service-connected left leg radiculopathy warrants ratings higher than the ratings awarded. The Board also notes the Veteran is service connected for other disabilities, including, as relevant to this decision, a low back disability and right leg radiculopathy. In a statement received in October 2007, the Veteran provided a statement regarding the pain from his back disability, but did not mention his left leg radiculopathy. The Veteran, in February 2008, submitted statements from V. J., and A. J. S., who both served with the Veteran and then became co-workers with him in their post-service occupation as pilots. V.J. observed the Veteran's performance of duties such as loading and unloading baggage and cargo, assisting in ground movement, and cleaning and stocking of the aircraft have been affected by various disabilities. A.J.S. provided a statement reporting similar duties, but conceded he has not observed the Veteran at work. In June 2008, the Veteran was provided a VA examination where he reported pain, numbness and tingling radiating to the left leg once a day lasting for a couple of hours. He described the pain as a moderate shock like pain. He was able to walk one to three miles. The Veteran's hip flexion, hip extension, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe flexion of the left lower extremity were all active against full resistance. Muscle tone was normal and there was no muscle atrophy. As to sensation, the left leg was normal to sense of vibration, light touch, and position sense, but pain sensation was impaired. The examiner reported that the Veteran had decreased sensation to sharp stimuli in the left lateral calf and thigh. The Veteran, who worked full time as a pilot in his civilian occupation, reported he had lost two days of work six months earlier due to an acute injury to his back but did not indicate left leg radiculopathy played a role in the lost time. He stated that if he sits for long periods of time, it hurt more in his back and legs than standing for walking. He acknowledged this occurred in his job as he has to sit for several hours, but he was still able to do his job. The examiner concluded the Veteran's back and left leg disability had a mild effect on chores, shopping, exercise, recreation, and travelling. There was a moderate effect on sports. There was no effect on activities of daily living such as grooming or feeding himself. The Veteran in September 2008 stated that only on a good day could he walk one to three miles, but estimated at the VA examination because he had not actually tried it. In October 2008, the Veteran complained of back and leg pain. The leg pain was located in the back of his left leg. He described chronic numbness and tingling. He did not have any bladder or bowel symptoms. He drove 3 hours to the VA clinic and his back was very sore and stiff. In February 2009, the Veteran reported ongoing back and leg pain, but his prescription medication was not helpful. An injection he received at an earlier visit was helpful. He walked with a limp and used a cane. In a March 2009 statement, T. R., M.D., a private physician indicated that the Veteran's back pain incapacitates him, at times, for a period of time and also impacted his range of motion. The doctor did not mention radiculopathy of the left leg. In a statement dated in March 2009, C. S., a private licensed social worker, reported that she had met with the Veteran since September 2008, in relation to treating the Veteran's PTSD. It was indicated that she observed the Veteran to be in great pain, and to have difficulty walking, upon his arrival after the 2-hour drive to the clinic. The Veteran was described as being bent over, sometimes parallel to the floor while walking, and with a cane. C. S. indicated that the Veteran was unable to attend therapy more than once a month because the two-hour drive to the clinic caused extreme back pain, which also caused the Veteran to be bedridden for at least a week after the drive. She also noted that the Veteran had called to cancel his appointment on two occasions because he was bedridden due to back pain. The social worker did not mention anything specific regarding the Veteran's left leg radiculopathy. In a statement received in April 2009, the Veteran's work manager indicated that the Veteran missed a number of days during 2008 as a result of back pain, she was unable to specifically provide the total number of days he missed. At this time, it appears the Veteran was working as an assistant manager at a truck stop. An April 2009 private medical record shows that the Veteran reported a history of severe back pain, with significant worsening during the past 6 to 12 months. He reported that he was unable to do much in the way of physical activity (including physical work at home) and walked with significant abnormality and pain and used a cane. He reported chronic pain in his leg. On physical examination, the Veteran was unable to stand fully extended. He stood at about 75 degree flexion at the lumbosacral region which makes it difficult to walk. He had decreased sensation to monofilament in the left leg L3-L4 regions. Motor strength was 3 to 4 + in the right leg and 2 + on the left. In August 2009, the Veteran complained of pain and spasms in his lower back that had become worse over the previous six months, but denied radicular pain or weakness in the lower extremities. Later that month, he reported pain 10/10 in his lower back radiating into his left leg for about four days. The Veteran felt he could not get out of bed. It was noted he had an MRI scheduled to further investigate his left leg radiculopathy, but canceled it. On VA examination in September 2009, the Veteran complained of bilateral radiculopathy, with his right sided radiculopathy starting around 2000. The bilateral lower extremity wakes him up at night. He takes medication but the response has been poor. The Veteran reported numbness, tingling, and muscle spasms in the left leg, but only pain and weakness in the right leg. Other symptoms included paresethesia, dysesthesias, and impaired incoordination, which the Veteran described as difficulty moving quickly and getting up from a chair. The Veteran also stated he never knew which leg is going to be numb and which leg will experience spasms. He stated that he was unable to walk more than a few yards, and used a cane and a wheelchair almost constantly, due to his low back disability. He reported that he walked from the parking lot to his desk at work without a cane or wheelchair. His symptoms were aggravated that current day due to the 4-hour car drive from his home to the VA. On physical examination, the VA examiner reported that the Veteran's gait was not normal and that he took few, very slow steps with a cane and presented to the appointment in a VA wheelchair. The examiner noted inconsistent findings of full strength and giving way throughout the lower extremities bilaterally. Sensation was normal in the right leg and there was decreased pain sensation in the medial leg, lateral leg, dorsum of the foot, and lateral site of the plantar surface of the foot. Vibration, light touch, and position sense of the left leg was normal. The examiner indicated the decreased pain sensation represented possible L4 and L5 nerve involvement. Reflexes were normal. He had normal muscle tone with no muscle atrophy and no joint movement that was affected by the Veteran's nerve disability. There was no abnormal movement. The VA examiner was unable to test the Veteran's balance because he refused to let go of either his cane or wheel chair. The examiner concluded the Veteran had left leg radiculopathy but paralysis was absent. The examiner concluded that the disability caused increased tardiness and absenteeism in his occupation. The disability at this point prevented the Veteran from performing chores, shopping, exercise, sports, recreation, and had a severe effect on travelling. There was no effect on activities of daily living such as grooming or feeding himself. The examiner specifically noted that driving for 30 minutes aggravated his left leg symptoms. The Veteran testified in March 2010 that he was working part time as a security guard 10 to 20 hours a week sitting in a chair. He moves around only to go to and from his vehicle. His employer makes arrangements when he experiences flare-ups for his back disability, which occurs three to four times a month and can last two to three days. When this happens, he is bedridden. The Veteran testified that he lives in a remote area of Nevada and the nearest facility for treatment is three hours away. After taking a trip, he is usually bedridden for about two days. In June 2010, the Veteran underwent a VA examination for right leg radiculopathy, but it was noted that the left leg bothered him first. The Veteran believed right leg symptoms at first may have been overshadowed by the intensity of his left leg symptoms. He reported balance problems in motion especially in walking and up and down stairs. He needs a cane at all times. Reflexes were normal. In the left leg, sensation was noted to be deceased in the lateral ankle and lateral foot for vibration, pain, pinprick, and light touch. There was a notation of decreased position sense in the "right foot position" but this may have been an error since that portion of the examination focused upon the left extremity. There was dysethesias posterior lateral area covering most of the leg. All joint movement was active against full resistance and there was normal muscle tone without muscle atrophy. The Veteran had an antalgic gait. The examiner reported that the Veteran worked in a courtesy market or country store part time and in the prior year lost 4 weeks due to back pain and pain down both legs. The examiner noted the Veteran chose this employment as it allowed him the freedom to get up and down and not have to move too fast in a store in a rural area. He had functional limitations of decreased mobility, problems with lifting and carrying, and decreased strength and pain in the lower extremities. It was also noted he could not bend to put on his socks and shoes or do chores involving lifting, bending, and he must be careful walking on rough terrain. On November 15, 2011, the Veteran was provided a VA examination regarding his left leg radiculopathy disability. The Veteran reported constant severe pain in the left lower extremity. Paresthesias and/or dysesthesias and numbness in the left lower extremity were also reported as severe. Upon examination, muscle strength was 4/5, that is, defined in the examination as active movement against some resistance, but not full resistance in the left knee extension, ankle plantar flexion, and the ankle dorsiflexion. There was no muscle atrophy. The reflexes were rated 1+ or hypoactive in both the knee and the ankle bilaterally. The sensory exam for light touch was normal in the left thigh, but decreased in the thigh/knee and in the foot/toes. There was no trophic changes (characterized by loss of extremity hair, smooth, shiny skin, etc.) attributable to peripheral neuropathy. The Veteran limped favoring his left leg, which the examiner attributed to both low back pain and left leg radiculopathy. There were no other physical findings documented. The external popliteal nerve, musculocutaneous, left anterior tibial nerve, left internal popliteal, posterior tibial, anterior crural, internal saphenous, obturator, external cutaneous nerve of the thigh and the ilio-inguinal nerves were all normal. The Veteran stated he occasionally used a wheelchair and constantly used a cane as an assistive device. This was due to his back disability and the disabilities in both legs. The examiner stated as a diagnosis that the Veteran had peripheral neuropathy, which impacted on the Veteran's ability to work because was unable to perform any manual labor due to the left leg radiculopathy. In an addendum dated in July 2012 to the VA examination report, the VA examiner determined that the Veteran's sciatic nerve was in incomplete paralysis and the severity of the Veteran's left leg radiculopathy was moderately severe. In the record before the Board, there are no other records of diagnosis, treatment or evaluation of the left leg radiculopathy by either VA or private medical providers since the effective date of the claim. Based on the above evidence, the Board finds that an evaluation in excess of 20 percent for radiculopathy of the left lower extremity is not warranted before November 15, 2011. The evidence reflects that the Veteran had symptoms of pain, numbness or tingling, and other sensory complaints in his left leg. All VA examinations before November 15, 2011 have shown that motor strength, measured at active motion against full resistance, and reflexes were within normal limits. He had normal muscle tone with no muscle atrophy and no joint movement that was affected by the Veteran's nerve disability. Sensation was decreased, but generally only as it related to pain. Other types of sensation such as monofilament, vibration, and light touch remained intact. Further, the Board notes that the Veteran's reported neurological symptoms on VA examinations in June 2008, September 2009, and June 2010 have been essentially unchanged. In this regard, the evidence shows that the Veteran has persistent numbness, and pain. He has reported subjective symptoms of paresethesia, dysesthesias, and impaired incoordination. The peripheral neuropathy results in him changing positions from sitting to standing due to pain as sitting for long periods causes him pain. This has had a functional impact because he cannot travel long distances and when he does, he is often bedridden for the next couple days. The Veteran also indicated that it results in limiting walking and he must use a cane and occasionally a wheelchair. Even though his employer has to provide him accommodations, he is able to perform his duties at the store where he currently works part time. The Board notes, however, that it is not just his left leg radiculopathy, but also the right leg radiculopathy and his back pain that causes his flare-ups, limitations in mobility and travelling, and other limitations of function. The Board also recognizes that there is evidence that the Veteran is limited in his mobility and must use a cane for ambulation and occasionally use a wheelchair. The Veteran, however, has other disabilities, low back pain and right leg radiculopathy that play a role. He has been separately rated for those service-connected disabilities. To the extent that those disabilities account for the Veteran's pain, limited mobility, the evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board has determined that the Veteran's overall loss of function has been recognized by not only the rating awarded for left leg radiculopathy, but also the ratings for the low back disability and the right leg radiculopathy. To include all of the loss of function and symptoms accounted for in other service-connected disabilities, in the left leg radiculopathy disability, would violate the prohibition against pyramiding. Thus, the Board concludes that the evidence does not indicate that the Veteran's radiculopathy of the left lower extremity more closely approximates moderately-severe radiculopathy. Instead, his left leg radiculopathy appears to be wholly sensory, which as noted earlier results in a finding of moderate severity, or a 20 percent rating. The Board recognizes that it remanded this matter in October 2011 because the examiner in September 2009 failed to determine the disability as mild, moderate, moderately severe, or severe. The opinion of the examiner, however, is not controlling on the Board, and the Board's decision is only informed by, and is not totally based upon, the opinions of VA examiners. Reconciling the September 2009 VA examination along with the June 2008 and June 2010 VA examination into a consistent picture, the Board finds that these symptoms, their level of severity, and effect do not represent a disability picture indicating a moderately severe left leg radiculopathy. The Board also recognizes that the private medical evaluation in April 2009 reported decreased motor strength as well as decrease sensation, but notes that similar findings were not found not only before that date but also subsequent to that date when tested in VA examinations in September 2009 and June 2010. In addition, no notations of motor strength or limitation of joint function were reported in the subsequent VAMC records. As different examiners, at different times, will not describe the same disability in the language, the Board, when examining the entire medical history before it, finds the evidence indicates the Veteran has moderate symptoms of incomplete paralysis of the sciatic nerve and the evidence does not indicate that he had moderately severe symptoms before November 15, 2011. 38 C.F.R. § 4.2. As decreased mobility, strength and pain are contemplated by a 20 percent evaluation for moderate incomplete paralysis of the sciatic nerve, the Board finds that September 2009 VA examination and the April 2009 private evaluation results are consistent with the 20 percent evaluation for radiculopathy. The Board finds that the evidence indicates the Veteran has symptoms of moderate incomplete paralysis, but his disability does not more nearly approximate moderately severe incomplete paralysis for the period since service connection became effective in September 2007 to November 15, 2011. As such, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 20 percent before November 15, 2011, for the Veteran's left leg radiculopathy disability. While the Veteran is competent to report the symptoms he experiences, and the Board finds him credible in this regard, except where in contrast to objective clinical findings, the reported symptoms are consistent with the assigned schedular evaluation of 20 percent before November 15, 2011. As of November 15, 2011, however, the Board has determined a 40 percent evaluation, but no higher, is warranted. The VA examination at that time indicated the Veteran has pain, paresthesias and/or dysesthesias, and numbness that are severe. Further, upon examination, the Veteran had not just decreased sensation to pain, but to other forms of sensation such as light touch. In addition, the VA examiner noted objective weakness in that the Veteran had joint motion and function against resistance, but was unable to do so against full resistance. The Veteran had hypoactive reflexes in the left leg. Finally, the Board is informed by the examiner's assessment that the Veteran's left leg radiculopathy is moderately severe. As noted above, however, the Board does not base its finding on just the examiners opinions, but for the other reasons expressed. The Board has determined that the evidence does not establish a rating in excess of 40 percent. There is no evidence of severe incomplete paralysis with marked muscular atrophy or complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The external popliteal nerve, musculocutaneous, left anterior tibial nerve, left internal popliteal, posterior tibial, anterior crural, internal saphenous, obturator, external cutaneous nerve of the thigh and the Ilio-inguinal nerves were all normal. Therefore, a separate rating for the other nerves of the left leg under their appropriate diagnostic code is not warranted. Thus, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 40 percent on and after November 15, 2011, for the Veteran's left leg radiculopathy disability. While the Veteran is competent to report the symptoms he experiences, and the Board finds him credible in this regard, except where in contrast to objective clinical findings, the reported symptoms are consistent with the assigned schedular evaluation of 40 percent from November 15, 2011 to the present. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here in this case, the rating criteria for sciatic nerve radiculopathy describe the disability levels and symptomatology. The Board has considered the Veteran's lay statements and the medical evidence regarding his disability. The Veteran describes, as to those symptoms related to radiculopathy as decreased mobility, pain and numbness, and in the examination, also reported his impairment at work and his quality of life such as his ability to travel. More recently, it has resulted in muscle weakness, but he is still able to move his left leg against some resistance. The Board has determined that such impairment of functioning is already encompassed in the rating criteria according to the diagnostic code for a sciatica nerve injury or disability. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. TDIU Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. As noted above, this issue is addressed below in the REMAND portion of this decision. ORDER 1. Entitlement to an initial rating in excess of 20 percent for the period from September 12, 2007, to November 15, 2011, for service-connected radiculopathy of the left lower extremity is denied. 2. Entitlement to an initial rating in excess of 40 percent from November 15, 2011, to the present for service-connected radiculopathy of the left lower extremity is denied. REMAND Although the Veteran has not filed a separate claim for a total disability rating based upon individual unemployability due to service-connected disability, the Board notes that such a claim is already part of his claim for a higher rating for left leg radiculopathy if raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (a request for a total disability rating for compensation based on individual unemployability raised by the Veteran is not a separate claim for benefits, but part of the claim for increase). While the record reflects that the Veteran is currently employed part-time at a convenience store or general store, the Board does not find that such is dispositive of the issue. A Veteran may be awarded TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Besides the Veteran's current rating for left leg radiculopathy at 40 percent, the Veteran is also service connected for PTSD (50 percent), a low back disability (10 percent), right leg radiculopathy (10 percent) and erectile dysfunction (0 percent). He has a total combined rating of 80 percent. The Board therefore finds that TDIU is reasonably raised by the record for TDIU on a schedular basis. See 38 C.F.R. § 4.16(a). Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter, to the Veteran's current address, for the issue of entitlement to a total disability rating due to service-connected disability based on individual unemployability (TDIU) in accordance with 38 U.S.C.A. §§ 5102 , 5103, and 5103A (West 2002), 38 C.F.R. § 3.159 (2010), and applicable legal precedent. Provide the Veteran a VA Form 21-8940, VETERAN'S APPLICATION FOR INCREASED COMPENSATION BASED ON UNEMPLOYABILITY, for completion. Request that the Veteran provide information on his current employment status. If he is currently not employed, the Veteran should be asked to provide an authorization from his prior employer concerning the reasons the employment relationship ended. All efforts to obtain records must be documented. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). Any additional development deemed necessary to adjudicate the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities should be undertaken. 2. Thereafter, adjudicate the issue of entitlement to a TDIU. Notice of the determination should be issued to the Veteran and his representative. If the benefit sought is not granted, issue a statement of the case and afford the appropriate period to respond. Thereafter, the matter should be returned to the Board for appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs