Citation Nr: 1339799 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 05-28 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial rating greater than 20 percent for herniated nucleus pulposus at L5-S1 and bulging disks at L4-L5 prior to December 1, 2007 and a rating greater than 40 percent from December 1, 2007. 2. Entitlement to an initial compensable rating for right lumbar radiculopathy prior to December 1, 2007, a rating greater than 10 percent from December 1, 2007 to August 15, 2013, and a rating greater than 20 percent from August 16, 2013. 3. Entitlement to an initial compensable rating for left lumbar radiculopathy prior to August 16, 2013, and a rating greater than 20 percent from August 16, 2013. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 16, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served in the Army National Guard from August 1971 to March 2003 with various periods of active duty, to include August 1971 to August 1973 and again from March 1995 to September 1995, active duty for training (ACDUTRA), to include June 22, 2002 to July 6, 2002, and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico (RO), which granted service connection and assigned the initial ratings of the disabilities on appeal here. The Veteran had a hearing before the RO in August 2008 and the transcript is of record. During the pendency of this appeal, the RO awarded higher ratings for all the disabilities, most recently in an August 2013 rating decision, as well as granting TDIU, effective August 16, 2013. Regardless of the RO's actions, the claims are still properly before the Board. See AB v. Brown, 6 Vet. App. 35 (1993)(after the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The claims have been appropriately recharacterized above. The claims were before the Board in March 2010 and June 2013 at which times the claims were remanded to the agency of original jurisdiction (AOJ) for additional development, to include affording the Veteran VA examinations. The development having been complete, the case is once again before the Board for appellate consideration. The TDIU issue 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. The VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. Prior to December 1, 2007, the Veteran's lumbar spine disability was manifested by pain and limitation of motion, but forward flexion was not limited to 30 degrees or less. 2. From December 1, 2007, the Veteran's lumbar spine disability is manifested by pain and limitation of motion, but not ankylosis. 3. For the entire period of the claim, the Veteran's lumbar spine disability did not cause incapacitating episodes during any 12 month period for a total duration of greater than two weeks. 4. Prior to June 21, 2012, the Veteran's lumbar spine disability was also manifested by neurological impairment of the bilateral lower extremities that most nearly approximates "mild" incomplete paralysis of the sciatic nerve. 5. From June 21, 2012, the Veteran's lumbar radiculopathy of the bilateral lower extremities most nearly approximates "moderate" incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 20 percent for herniated nucleus pulposus at L5-S1 and bulging disks at L4-L5 prior to December 1, 2007 and a rating greater than 40 percent from December 1, 2007 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243 (2013). 2. The criteria for an initial rating of 10 percent, but no higher, for right lumbar radiculopathy from March 19, 2004 to June 20, 2012 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 4.124a, DC 8520 (2013). 3. The criteria for a rating of 20 percent, but no higher, from June 21, 2012 for right lumbar radiculopathy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 4.124a, DC 8520 (2013). 4. The criteria for an initial rating of 10 percent, but no higher, for left lumbar radiculopathy from March 19, 2004 to June 20, 2012 have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 4.124a, DC 8520 (2013). 5. The criteria for a rating of 20 percent, but no higher, from June 21, 2012 for left lumbar radiculopathy have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 4.124a, DC 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in April 2004, September 2009, and April 2010. Thereafter, the claims were readjudicated numerous times, most recently in August 2013. The Board is also satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to these claims. In this regard, the Board notes that service treatment records, private medical records, and VA medical records have been obtained. Neither the Veteran nor his representative has identified any additional, existing evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. The Veteran was also afforded VA examinations in 2004, 2005, 2007, 2010, 2012, and 2013. The Board finds these examinations adequate as they are based on thorough physical examinations and complete review of the claims folder. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examinations as a whole provide sufficient detail of the Veteran's current manifestations in comparison to the applicable diagnostic criteria. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. As noted above, the Veteran has been assigned "staged" ratings for his lumbar spine and radiculopathy disabilities. Whether an initial rating or a claim seeking an increased rating, "staged" ratings are appropriate where there are distinct time periods of worsening. The Board has considered the application of "staged ratings" here as appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, a maximum 60 percent evaluation is warranted and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, and a 10 percent evaluation is assigned with the incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). The Veteran has been separately rated for right lumbar radiculopathy and left lumbar radiculopathy under Diagnostic Code 8520, for the sciatic nerve. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board observes that the words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Lumbar Spine Disability The Veteran claims his low back disability causes chronic pain, limited motion, and significant difficulties with activities of daily living. The Veteran's low back disability was initially granted with a 20 percent disability rating, effective March 19, 2004. During the pendency of this appeal, the Veteran was granted an increased rating for his low back disability to 40 percent, effective December 1, 2007. The Veteran's VA and private medical records indicate ongoing treatment for various spinal conditions, to include degenerative joint disease (DJD) of the lumbar spine, herniated and bulging discs, lumbar spondylosis, arthritis, and IVDS. The Veteran was afforded a VA examination in August 2004 where he complained of constant, severe low back pain, and associated foot and knee swelling. At that time, he denied fecal or urinary incontinence. He also claimed missing work six times during the last year due to low back pain. The Veteran wore a back brace for support, but did not require any assistive devices and had no history of surgery. Range of motion testing revealed forward flexion to 90 degrees, further limited to 60 degrees on repetition and due to pain. Extension was limited to 30 degrees and further limited to 25 degrees on repetition and due to pain. The examiner noted no muscle atrophy and no incapacitating episodes over the last 12 month period. The Veteran was diagnosed with minimal arthritis and muscle spasms by x-ray. In September 2004, the examiner further noted on CT scan, the Veteran was found to have mild discogenic and degenerative joint disease of the lumbar spine in addition to L5-S1 herniated disc and L4-L5 bulging disc. A National Guard examination dated May 2004 also notes the lumbar herniation of nucleus pulposus of the L5-S1, finding the Veteran fit for retention only with a permanent profile prohibiting running and situps. Private treatment records dated in 2005 indicate radiculopathy at the same levels of the herniated/bulging discs, discogenic and degenerative lumbar spine disease, and 3/5 weakness of the left hip flexors and quadriceps. A February 2005 private record notes forward flexion limited to 40 degrees with pain. The Veteran was afforded an additional VA examination in September 2005 where the Veteran complained of worsened low back pain. He again denied fecal or urinary incontinence. At that time, forward flexion was limited to 90 degrees, with further functional limitations starting at 63 degrees due to pain. Extension was limited to 30 degrees, with further functional limitations starting at18 degrees due to pain. Strength was normal and the Veteran was diagnosed with L5-S1 herniated nucleus pulposus, L4-L5 bulging discs, and lumbar myositis. In short, the medical evidence prior to December 1, 2007 indicates the Veteran's lumbar spine disability was manifested by pain, herniated/bulging discs, limited forward flexion no worse than 40 degrees, and chronic pain. As noted above, a rating higher than 20 percent is only warranted for forward flexion limited to 30 degrees or less or incapacitating episodes having a total duration of over two weeks in a 12 month period. The medical evidence simply does not support a rating greater than 20 percent prior to December 1, 2007. In so finding, the Board has consider functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination and pain on movement of a joint under 38 C.F.R. § 4.45; see also DeLuca, 8 Vet. App. 202. Indeed, the Board has considered the lowest degree measured by any VA or private examiner during this time period for forward flexion or extension. No medical professional noted forward flexion worse than 40 degrees during this time period even considering functional loss due to repetition, pain, incoordination, flare-ups, lack of endurance, and so forth. The Veteran was afforded a VA examination on December 1, 2007 where, for the first time, the Veteran's range of motion testing for his lumbar spine showed pain at 30 degrees forward flexion. The Veteran still had range of motion to 90 degrees forward flexion, but the examiner did note pain starting at 30 degrees. Similarly, extension was limited to 30 degrees with pain starting at 10 degrees. The Veteran denied any incapacitating episodes over the last year at that time. The Veteran was also afforded a VA examination in August 2010 with similar results. He again complained of pain, but no bladder or bowel abnormalities. Forward flexion was limited to 90 degrees with pain after 30 degrees and extension was limited to 30 degrees, with pain after 10 degrees. The Veteran was also afforded VA examinations in June 2012 and August 2013. At those times forward flexion was limited to 5 degrees and 10 degrees respectively due to pain. In 2013 he could not perform repeat testing due to pain. There was no evidence of muscle atrophy, but the Veteran did have 4/5 weakness at the bilateral ankles and toes in 2012. At both examinations, the Veteran indicated less than one week of incapacitating episodes due to I VDS. In short, the medical evidence from December 1, 2007 indicate forward flexion limited 30 degrees or less, but not "ankylosed" (or frozen), and incapacitating episodes of no more than one week at any 12 month period. In so finding, the Board has consider functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination and pain on movement of a joint under 38 C.F.R. § 4.45; see also DeLuca, 8 Vet. App. 202. Indeed, as noted above, the Veteran was able to forward flex to 90 degrees at the December 1, 2007 and August 2010 VA examinations, but in light of pain noted at 30 degrees, the Veteran was afforded an increased rating to 40 percent from December 1, 2007. A rating greater than 40 percent for the lumbar spine is only warranted with a showing of ankylosis of the spine or incapacitating episodes having a total duration of at least six weeks during a 12 month period. The medical evidence does not support ankylosis or such prolonged incapacitating episodes. In fact, during the entire pendency of this appeal, the Veteran has mainly denied incapacitating episodes. Only in the 2012 and 2013 examinations did the examiner note "less than one week" period of incapacitating episodes over the past 12 months at those times. It is clear an increased rating is not warranted at any time period under DC 5243. Similarly, the Veteran's lumbar spine is manifested by limited motion, significantly forward flexion, but no physician has ever indicated his spine is "ankylosed" (i.e., frozen). Thus, a rating greater than 40 percent is not warranted from December 1, 2007. The Board has considered whether there is any other schedular basis for granting a higher rating but has found none. The Board also considered whether any further separate ratings are warranted but has determined that they are not. In this regard, the Veteran is already receiving separate ratings for lumbar radiculopathy bilaterally. The medical evidence does not support any additional neurological abnormalities warranting additional separate ratings. Indeed, the Veteran had denied bowel and bladder abnormalities at all times through the pendency of this appeal. Radiculopathy of the Bilateral Lower Extremities The Veteran's lumbar spine disability also includes manifestations of radiculopathy of the bilateral lower extremities, and the Veteran was awarded separate disability ratings for the right and left lumbar radiculopathy. As the issues reflect, lumbar radiculopathy was originally rated non-compensable. From December 1, 2007, however, the Veteran was awarded a 10 percent rating for "mild" right side lumbar radiculopathy, while the left side was still rated non-compensable. Effective August 16, 2013, the Veteran was granted 20 percent ratings for both left and right lumbar radiculopathy determined as "moderate." The claims are complicated because from the initial grant of service connection in March 2004 the medical evidence indicates inconsistent complaints of bilateral lower extremity manifestations, sometimes described as swelling, sometimes numbness, and sometimes pain. Similarly, EMG and other nerve conduction tests inconsistently report findings or the absence of objective evidence of radiculopathy. In August 2004, the Veteran complained of localized low back pain during a VA examination with associated left foot and right knee swelling. At that time, the examiner noted a diminished pinprick test over the bilateral legs and a positive straight leg test bilaterally. Accordingly, the examiner diagnosed the Veteran with bilateral lumbar radiculopathy. CT scans taken at that time confirmed herniated and bulging discs at multiple levels. A private EMG done in April 2005 along with MRI further note left and right lumbar radiculopathy. A February 2005 private opinion further notes 3/5 weakness of the left hip flexors and quadriceps. In contrast, however, a September 2005 VA examination reveals a normal pinprick test. At that time, the Veteran complained only of "occasional" numbness to the bilateral lower extremities. Further testing was done during the December 1, 2007 VA examination where only right lower extremity radiculopathy produced "actual clinical findings" of minimal to moderate radiculopathy. Although the left lower extremity radiculopathy diagnosis was indicated, no objective confirmation was found at that time. Further complicating the matter, an August 2010 peripheral nerves VA examination further found no evidence of radiculopathies on EMG testing. At that time the Veteran complained of paresthesias and numbness of the bilateral legs, the right being worse than the left, mild to moderate severity. The examiner found no evidence of sciatic nerve paralysis on either side or any radiculopathies. An October 2010 EMG test was similarly normal despite the Veteran's complaints. A June 21, 2012 VA examination noted the Veteran's complaints of bilateral lumbar radiculopathy and further noted 4/5 weakness of the bilateral ankles and toes, with no muscle atrophy. There was also decreased sensation over the bilateral lower extremities. The examiner diagnosed the Veteran with "moderate" radiculopathy of the bilateral lower extremities. Most recently, during the August 16, 2013 VA examination, the Veteran was found to have decreased sensory testing over the bilateral feet and toes. Based on examination results, the examiner diagnosed the Veteran with "moderate" sciatic nerve radiculopathy, bilaterally. In short, prior to the June 21, 2012 VA examination there are conflicting reports of whether the Veteran had actual clinical confirmation of bilateral radiculopathy. Pin prick and straight leg testing were at times positive bilaterally and other times negative bilaterally. A private April 2005 EMG confirmed bilateral radiculopathy whereas a 2007 VA examination only showed actual clinical findings with respect to the right side radiculopathy. An October 2010 EMG, moreover, was normal bilaterally. At all times, however, the Veteran constantly complains of manifestations affecting his bilateral legs. These manifestations are consistently described as "mild" or "mild to moderate." In light of the totality of the evidence during this time period, and resolving all reasonable doubt in favor of the Veteran, the Board concludes a 10 percent rating for "mild" incomplete paralysis of the sciatic nerve is warranted for both the left and ride sided radiculopathy prior to June 21, 2012. A rating greater than 10 percent for either side prior to June 21, 2012 is not warranted in light of the inconsistent objective findings and inconsistent manifestations. At times the Veteran reported pain, but no numbness or paresthesias, at other times the Veteran merely indicates "occasional numbness" to the bilateral lower extremities. Herniated and bulging discs were objectively confirmed during this time period, but the medical evidence does not consistently confirm radiculopathy bilaterally and the Veteran's symptoms do not support anything beyond a "mild" condition bilaterally. At the time of the June 21, 2012 VA examination, the Veteran's radiculopathy was described as "moderate" bilaterally causing severe pain. Objectively, the Veteran had decreased sensation bilaterally over the legs, ankles, feet, and toes. The August 2013 VA examiner further confirmed the radiculopathy, finding sciatic nerve incomplete paralysis bilaterally. Although the Veteran had mild paresthesias, he exhibited "moderate" numbness causing an overall "moderate" disability bilaterally. Looking at the evidence in the most favorable light, the Board concludes the Veteran had bilateral "mild" incomplete paralysis of the sciatic nerve prior to June 21, 2012, and "moderate" incomplete paralysis of the sciatic nerve from June 21, 2012. The Veteran is entitled to bilateral initial 10 percent ratings, but no higher. The Veteran is entitled to bilateral 20 percent ratings, effective June 21, 2012, but no higher. There is no evidence indicating his lumbar radiculopathy causes moderately severe, severe, or complete paralysis of the sciatic nerve at any time during the appellate time frame. Other Considerations The Board has considered whether these claims should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. Here, the Board finds the applicable rating criteria reasonably describes the Veteran's disabilities' level and symptomatology. His disability picture is contemplated by the rating schedule. Thus, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to an initial rating greater than 20 percent for herniated nucleus pulposus at L5-Sa and bulging disks at L4-L5 prior to December 1, 2007 and a rating greater than 40 percent from December 1, 2007 is denied. Entitlement to an initial rating of 10 percent, but no higher, for right lumbar radiculopathy from March 19, 2004 to June 20, 2012 is granted subject to the laws and regulations governing monetary awards. Entitlement to a rating of 20 percent, but no higher, for right lumbar radiculopathy from June 21, 2012 is granted subject to the laws and regulations governing monetary awards. Entitlement to an initial rating of 10 percent, but no higher, for left lumbar radiculopathy from March 19, 2004 to June 20, 2012 is granted subject to the laws and regulations governing monetary awards. Entitlement to a rating of 20 percent, but no higher, for left lumbar radiculopathy from June 21, 2012 is granted subject to the laws and regulations governing monetary awards. REMAND The Veteran maintains that his service-connected disabilities render him unemployable. Specifically, he indicates he stopped working in 2009 due to his service-connected disabilities. Indeed, he is in receipt of Social Security Administration (SSA) disability benefits as of July 2008. The Veteran was awarded a total disability rating based on individual unemployability (TDIU) effective August 16, 2013 in an August 2013 rating decision. At that time, the RO noted the most recent August 2013 VA examination findings in support of the award, but did not consider whether TDIU was warranted prior to August 16, 2013. The Board last remanded this claim in June 2013 to afford the Veteran a VA examination to ascertain whether the combined effect of all his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. The Veteran was afforded a VA examination in August 2013 where the examiner opined that the Veteran's lumbar conditions preclude the Veteran from gainful employment whereas his other non-lumbar related conditions do not preclude employment. In light of the fact that the Veteran stopped working in 2009 and in light of the increased ratings awarded here, an addendum should be requested from the 2013 examiner to clarify at what point in time the Veteran became unemployable due to his service-connected disabilities. The RO must consider and specifically address entitlement to TDIU prior to August 16, 2013 especially in light of the increased ratings granted herein. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009)(holding a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim where the Veteran claims his disability causes unemployability). Accordingly, the case is REMANDED for the following action: 1. Ask the August 2013 VA examiner for an addendum to the prior opinion specifically requesting clarity of the approximate date the Veteran became unemployable due to his service-connected disabilities. If the same examiner is not available, obtain a medical opinion from an appropriate specialist to determine the approximate date on which the effects of all of his service-connected disabilities, cumulatively, precluded his ability to obtain and maintain gainful employment. The claims file must be made available to the examiner for review in conjunction with the examination. The examiner must consider the Veteran's work and educational history. The examiner is to be made aware of the Veteran's service-connected disabilities, to include lumbar spine disorder, radiculopathy of each lower extremity, and GERD, with gastritis and duodenitis. The examiner is asked to clarify at what point in time the Veteran's service-connected disabilities alone precluded him from securing and following substantially gainful employment consistent with his education and occupational experience. All opinions provided must include an explanation of the bases for the opinions reached. 2. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated with consideration of entitlement to TDIU at any point during the pendency of the Veteran's increased rating claims. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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 2002 & Supp. 2013). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs