Citation Nr: 1328576 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 07-36 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a rating in excess of 40 percent for lumbosacral strain. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: David Owens, Agent WITNESSES AT HEARING ON APPEAL Appellant and neighbor ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to February 1976 and from January 1977 to March 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which, in pertinent part denied entitlement to an increased rating in excess of 40 percent for a lumbosacral strain. The Veteran provided testimony before a decision review officer (DRO) at the RO in April 2008. A transcript of this hearing is of record. In December 2009 and March 2011, the Board remanded this matter for further development. By rating action in September 2012, service connection for lumbar radiculopathy, right and left lower extremities secondary to the service-connected lumbosacral strain was granted, and separate 10 percent evaluations was granted effective as of June 27, 2011. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file indicates that there is relevant information to the Veteran's current claims and such evidence has been considered accordingly. FINDINGS OF FACT The Veteran's lumbar spine disability is manifested by limitation of motion but not by unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes or neurologic impairment other than radiculopathy involving the sciatic nerves. The Veteran has associated moderate incomplete paralysis of the left sciatic nerve. The Veteran has associated moderate incomplete paralysis of the right sciatic nerve has been demonstrated. The Veteran's service connected disabilities render him incapable of obtaining and maintaining gainful employment. CONCLUSION OF LAW The criteria for a rating greater than 40 percent, for the orthopedic manifestations of the Veteran's service-connected lumbosacral strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2013). The criteria for separate 20 percent rating for radiculopathy of the left lower extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8520 (2013). The criteria for a separate 10 percent rating for radiculopathy of the right lower extremity have been met since. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requires generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in February 2007, prior to the July 2007 rating decision, that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no additional available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Also, the Veteran was afforded several VA examinations, most recently in January 2012, to evaluate the severity of his lumbar back disability. The Board finds that the VA examination is adequate because, as shown below, it was based upon consideration of the pertinent history, the Veteran's reports and current complaints, and because it describes the lumbar spine symptomatology in detail sufficient to allow the Board to make a fully informed determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The Veteran has not asserted, and the evidence does not show, that his lumbar back disability has increased since the most recent examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.). The Board accordingly finds no reason to remand for further examination. In its December 2009 remand, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, obtain all available VA treatment records for the low back disability and associated neurologic disabilities and associate them with the claims file. In addition the Veteran was to be afforded a VA examination. Al neurological impairments of the back and lower extremities were to be reported. In its March 2011 remands, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, obtain all available treatment records for the low back disability from the Monmouth Medical Center Clinic, Long Branch, New Jersey. These records were obtained and included in the claims file. In addition, the Veteran was afforded VA examinations in June 2011. Therefore, the AOJ substantially complied with all of the Board's December 2009 and March 2011 remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002). II. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities of the spine are evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The criteria of the General Rating Formula are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The General Rating Formula pertinent to the lumbosacral and cervical spines provide a 40 percent rating for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is assigned for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, are to be evaluated under an appropriate diagnostic code. General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right later rotation is 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. General Rating Formula, Note (2). Intervertebral Disc Syndrome (IVDS), Code (5243), is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two week but less than four weeks during the past twelve months, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Code 5243. VA regulations provide that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. IVDS Formula Note (1). When evaluating musculoskeletal disabilities rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, functional loss of a joint due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination is demonstrated, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 (regarding arthritis) are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The provisions of 38 C.F.R. § 4.40, 4.45 do not apply where, as here, the maximum rating on the basis of limitation of motion is in effect as an increased rating would require ankylosis. Johnson. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, atrophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. 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 only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2013). DC 8520 provides the rating criteria for paralysis of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis that is mild, moderate or moderately severe in degree, respectively. 38 C.F.R. § 4.124a, DC 8520. III. Background By rating action in November 1982 service connection was granted for lumbosacral strain and a noncompensable rating was assigned. In September 1988 the rating was increased to 20 percent. By rating action in February 1997 the rating was increased to 40 percent. In September 1998, the Social Security Administration found the Veteran disabled due to non-service connected pulmonary sarcoidosis (primary diagnosis) and aseptic necrosis and osteoarthritis of the left hip (secondary diagnosis). The Veteran was seen for VA treatment in June 2002, when he was noted to have an unsteady gait due to a total hip replacement. Prior to April 2003, the Veteran was treated for neurologic complaints related to the cervical spine and there were no reported abnormalities related to the lower extremities or back. In April 2003, the Veteran reported that pain had begun to radiate down his left leg. In July 2003, the Cleveland, Ohio RO denied an increased rating for lumbosacral strain. In August 2003, the Veteran noted the denial, and sent VA treatment records dated in 2002. These were constructively of record at the time of the July 2003 rating decision. Bell v. Derwinski, 2 Vet. App. 611 (1992). In October 2003 and May 2004, the Veteran submitted other statements, but did not mention the back disability. On VA treatment in January 2006, the Veteran reported increased pain over several months. Sensation and strength was intact. In May 2006, the Veteran complained of severe pain radiating down both legs. Straight leg raising was positive and there was edema. A neurologic examination was non-focal. In August 2006, he was noted to have "give way" in the ankles, greater on the left than right. In a statement received in November 2006, the Veteran claimed entitlement to an increased rating for the low back disability. A VA outpatient treatment record dated in December 2006, notes worsening radiculopathy with decreased sensation on the left. In March 2007, shows that the Veteran had "give way" at the left ankle and knee. At a March 2007 VA examination, the Veteran reported daily pain, worse with bending, lifting, and sitting for long periods. The pain radiated down both legs. He reported no bowel or bladder change; incapacitating episodes within the last 12 months; or flare-ups. There were no problems associated with repetitive motion. The examiner noted that an MRI in June 2002 revealed degenerative changes. An X-ray of the lumbosacral spine dated in October 2005 revealed degenerative disc disease (DDD). Physical examination revealed deep tendon reflexes were even; muscle tone was normal; sensation was intact to light touch in the lower extremities; and motor strength was 5/5. His reflexes were even but 1/4. There was decreased motion of the lumbar spine in all planes due to complaints of pain. Range of motion (ROM) was flexion to 60 degrees; extension to 20 degrees; right and left lateral flexion to 15 degrees; and, right rotation to 20 degrees and left rotation 15 degrees. There was no deformities, paraspinal tenderness, or muscle spasms noted. After repetitive motion there was no additional loss of function due to pain, fatigue, or lack of coordination. The diagnoses were lumbosacral sprain/strain and lumbosacral DDD. A January 2008 VA Form 21-5655, Financial Status Report revealed that the Veteran was employed. At a May 2008 VA examination, the Veteran reported persistent pain in the low back of 9 on a scale of 10. At times the pain radiated to the left calf, and he had numbness in the right thigh. He also experienced numbness of the lateral aspect of the right thigh. He also reported left leg weakness. He denied a history of a stroke. He reported last working in June 2007 in a warehouse. He used a forearm crutch for ambulation. He used no other assistive devices. He reported no incapacitating episodes within the last 12 months. Physical examination revealed no gross deformities or tenderness to palpation. ROM was flexion to 40 degrees; extension to 0 degrees; right and left lateral flexion to 20 degrees; and, rotation to 30 degrees with pain at the end of motion. After 3 repetitions back pain was slightly increased. ROM was unchanged. There was no additional loss of function due to fatigue, weakness, or lack of endurance. X-rays revealed lumbosacral spine degenerative changes L5-S1 with disc space narrowing and large marginal osteophytes. There was no acute pathology. On neurologic evaluation, muscle strength was 5-/e on the left lower extremity and 5/5 on the right. Deep tendon reflexes were 1+ at the knees and absent in both ankles. At a Decision Review Officer hearing in April 2008, the Veteran testified that there were times when he could not feel his legs and he would fall. He had reportedly applied for Social Security disability benefits. A January 2009 Mental Health Clinic entry noted the Veteran reported being unemployed since June 2006 due to back pain. By rating action in April 2009 entitlement to individual unemployability was denied. At a March 2010 VA examination, the Veteran reported persistent pain in the low back. The pain remained 9 on a scale of 10. Intermittent pain radiated to the bilateral posterior thighs. The pain was aggravated by bending and lifting. He complained of weakness in the left lower extremity. He denied tingling and numbness in the bilateral lower extremities; and bowel or bladder incontinence. The examiner noted that an October 2005 X-ray revealed DDD; an MRI revealed multilevel degenerative changes and epidural lipomatosis resulting in severe central canal stenosis at L4-L5 and L5-S1; moderate to severe canal stenosis at L2-L3 and L3-L4. There was left paracentral disc protrusion at L3-L4 resulting in severe narrowing of the left lateral recess. Physical examination revealed mild tenderness to palpation. ROM was flexion to 30 degrees; extension to 15 degrees; right and left lateral flexion to 20 degrees; and, rotation to 20 degrees with pain at the end of motion. After 3 repetitions ROM was slightly increased. There was no additional loss of function due to fatigue, weakness, or lack of endurance. Motor strength was 4/5 in the lower extremities. Sensation was impaired with light touch on the lateral aspects of the left leg. X-rays revealed lumbosacral spine partial sacralization of L5 with bony ankylosis; left total hip prosthesis; and, atheriosclerosis. The impression was multilevel lumbosacral spine stenosis secondary to spondylosis and lipomatosis; left lumbar radiculopathy, The examiner opined that the Veteran had neurological deficits in the left lower extremity due to severe lumbosacral spinal stenosis. At a May 2010 VA examination, the Veteran's reported history was unchanged from the previous examinations. Physical examination again revealed deep tendon reflexes were even but 1/4; muscle tone was normal; straight leg raise was negative; motor strength was 5/5 distal and proximal in the lower extremities, except in the left great toe, where it was 4/5. Sensation was intact, except in the L5 distribution on the left. There were muscle spasms of the lumbar paraspinal muscles. There was no scoliosis, axial tenderness; or deformities. His gait was slow and antalgic. ROM was flexion of the lumbar spine to 20 degrees; extension to 0 degrees; right and left lateral flexion to 10 and 15 degrees; and, rotation to 15 and 10 degrees with pain at the end of motion. Sensation was grossly intact to light touch in the lower extremities except for the left L5 distribution which was decreased. Gait was slow and antalgic. After 3 repetitions there was no additional loss of function due to pain, fatigue, weakness, or lack of coordination. The impressions were severe lumbar DDD; and, severe lumbar stenosis. The examiner opined that the severity of the Veteran's neurological impairment was due to his back condition and limited his ability to do any type of work, which required standing, walking, or sitting for extended periods of time, "so it is a total disability due to his back condition." At an August 2010 VA examination, the Veteran stated he had not worked since 2000 and was "on disability." Physical examination revealed findings similar to those on the May 2010 examination. Deep tendon reflexes were even, but 1/4; muscle tone was normal; straight leg raise was negative; motor strength was 5/5 distal and proximal in the lower extremities. Sensation was grossly intact to light touch in the lower extremities except for the left L5 distribution which was decreased. Gait was slow and antalgic. here were some muscle spasms of the lumbar paraspinal muscles. There was no scoliosis, axial tenderness; or deformities. ROM was flexion of the lumbar spine to 25 degrees; extension to 0 degrees; right and left lateral flexion to 15 degrees; and, rotation to 10 and 15 degrees with pain at the end of motion. After 3 repetitions there was no additional loss of function due to pain, fatigue, weakness, or lack of coordination. The impression was severe lumbar DDD; severe lumbar stenosis. The examiner opined that, the Veteran's leg pain and radiation of pain down the legs were at least as likely as not due to his service connected lumbar condition. The rational was that the Veteran had severe lumbar stenosis and it was common to have leg involvement with a severe stenosis. March and May 2011 Monmouth Medical Center Clinic records note a complaint of numbness in both feet. The Veteran was advised to rest and also underwent an epidural with no relief. The diagnosis was sciatica. At a January 2012 VA examination, the examiner noted the Veteran's history as reported on previous examinations adding peripheral neuropathy. Physical examination revealed deep tendon reflexes were even at 1/4; muscle tone was normal; straight leg raise was negative; sensation was grossly intact to light touch in the lower extremities except for the bilateral L5 distribution. There was no atrophy, scoliosis, axial tenderness; or deformities. There was slight muscle spasm and loss of lumbar lordosis. ROM was flexion of the lumbar spine to 20 degrees; extension to 10 degrees; right and left lateral flexion to 10 and 15 degrees; and, rotation to 10 degrees with pain at all motion. Motor strength was 5/5 in both lower extremities (except at the left great toe). After 3 repetitions there was no additional loss of function due to pain, fatigue, weakness, or lack of endurance. The impression was severe lumbar stenosis; bilateral lumbar radiculopathy; and lumbar DDD. The examiner opined that, the Veteran's bilateral lumbar radiculopathy was due to lumbar stenosis. The diagnoses were severe lumbar stenosis, bilateral lumbar radiculopathy and lumbar disc degeneration. IV. Analysis Incapacitating episodes of disc disease are neither shown, nor have such been alleged. In other words, there is no evidence of physician prescribed bedrest. An increased rating is therefore not warranted under the formula for rating intervertebral disc disease. The Veteran is in receipt of the maximum rating for limitation of thoracolumbar motion. Throughout the appeal period, thoracolumbar forward flexion has been between 20 and 60 degrees, ankylosis of the thoracolumbar spine either favorable or unfavorable has not been shown. Absent ankylosis, there is no basis for awarding an increased rating on the basis of the orthopedic manifestations of the lumbar spine disability. The disability picture presented does not warrant a rating in excess of the currently assigned 40 percent under any applicable criteria. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2013). Neurologic Impairment The AMC considered the Veteran's neurologic symptomatology and by rating action in September 2012, granted service connection for lumbar radiculopathy, right and left lower extremities secondary to the service-connected lumbosacral strain. Separate 10 percent evaluations were granted based on findings of mild incomplete paralysis. This was effective as of June 27, 2011, the date of receipt of additional medical evidence subsequent to the Board's March 2011 remand. The Veteran has not appealed the September 2012 rating action. The question remains as to whether there was additional neurologic disability warranting compensation prior to June 27, 2011 and whether there was such disability warranting more than the 10 percent ratings awarded by the AMC. As noted above, the Veteran has had symptoms of radiculopathy in both lower extremities throughout the entire appeal period, which extends back at least as far as the Veteran's claim for increase in November 2006, and perhaps as far back as the VA treatment records showing abnormal neurologic findings in August 2006, or even further, if the Veteran's 2003 statement and submission is deemed to be new and material evidence received during the appeal period after the July 2003 rating decision. See 38 C.F.R. § 3.159(b) (2013). The Board will not decide the question of when the appeal period began at this point, so as to preserve the Veteran's due process rights. See Houston v. Principi, 18 Vet. App. 395 (2004) (limiting Boards ability to decide matters not previously considered by the RO). The record clearly shows; however, that the Veteran has had neurologic impairment in both lower extremities throughout the appeal period. The specific symptoms have varied slightly over time, but they have been shown to include diminished or absent reflexes in both lower extremities, and radiating pain. There have also been periodic reports of slightly diminished strength, and sensation in the left lower extremity. Inasmuch as his impairments have not been wholly sensory or subjective, a rating for moderate incomplete paralysis of the lower extremities is warranted throughout the appeal period. Accordingly, separate 20 percent ratings are granted for each lower extremity. A higher rating is not warranted, because muscle strength has been largely intact and at most only slightly diminished, sensation has been only mildly diminished on the left. The Board has rated the disability on the basis of sciatic nerve impairment, because he has been noted to have sciatica, and rating under that nerve affords the highest possible rating. The evidence is against a finding of more than moderate incomplete paralysis of the sciatic nerve in either leg. V. Extraschedular considerations Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2013). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). In this case, the orthopedic manifestations of the back disability consist of limitation of motion and associated functional impairment. There are no manifestations that are outside of the rating schedule. The ratings for neurologic impairment contemplate all neurologic symptoms and there is no additional neurologic disability. Although the Veteran has an antalgic gait, this manifestation is partially associated with the non-service connected hip replacement, and partially a result of neurologic impairments that are contemplated and compensated by the rating criteria. There are no other reported manifestations outside the rating criteria. Referral for an extraschedular rating is not warranted. VI. TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case the appeal of entitlement to TDIU due to the impairment caused by his service-connected lumbar spine disability has been reasonably raised by the record. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). Total disability ratings for compensation 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, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2013). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2013). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). In this case, the Veteran meets the percentage requirements of 38 C.F.R. § 4.16(a) (2013). The Veteran's service connected back disability has been consistently described by a VA examiner as severely disabling, and there is a medical opinion that the disability renders him unemployable. There is no opinion of record to the contrary. Accordingly, TDIU is granted. ORDER Entitlement to a rating in excess of 40 percent for the orthopedic manifestation of a lumbar back disorder is denied. A separate 20 percent rating is granted for radiculopathy of the left lower extremity. A separate 20 percent rating is granted for radiculopathy of the right lower extremity. Entitlement to TDIU is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs