Citation Nr: 1756094 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 12-33 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a disability rating greater than 40 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to a compensable disability rating for L5 radiculopathy of the right lower extremity prior to February 13, 2014, greater than 10 percent prior to May 1, 2017, and greater than 40 percent since May 1, 2017. 3. Entitlement to a total rating by reason of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and an observer ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran had active service with the U.S. Army from September 1971 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 and April 2014 decisions issued by the Milwaukee, Wisconsin, Regional Office (RO). This case was previously before the Board in March 2015 and was remanded for a videoconference Board hearing. In May 2016, the Veteran was afforded a videoconference Board hearing, testifying from the correctional facility in which he is currently incarcerated. A transcript of the hearing is associated with the record. The matter was remanded again in December 2016 to the Agency of Original Jurisdiction (AOJ) for additional development. FINDINGS OF FACT 1. The Veteran's service-connected degenerative disc disease of the lumbar spine has been manifested by chronic pain resulting in forward flexion to 20 degrees when considering additional functional loss and/or impairment, and is not shown to result in ankylosis of the spine, or incapacitating episodes of intervertebral disc syndrome (IDS) requiring bed rest as defined under VA law. 2. Prior to February 13, 2014, the Veteran's radiculopathy of the right lower extremity was not manifested by significant neurological deficit warranting a separate compensable disability rating under any of the applicable neurological rating codes. 3. From February 13, 2014 to April 30, 2017, the Veteran's radiculopathy of the right lower extremity was manifested by no more than mild incomplete paralysis of the sciatic nerve, mild neuritis or mild neuralgia. 4. From May 1, 2017, the Veteran's radiculopathy of the right lower extremity is manifested by no more than moderately-severe incomplete paralysis of the sciatic nerve, moderately-severe neuritis or moderately-severe neuralgia. 5. The Veteran does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), nor is he otherwise rendered unemployable by his service-connected bilateral corneal dystrophy warranting an extra-schedular total disability rating under 38 C.F.R. § 4.16(b). CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 40 percent for degenerative disc disease of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2017). 2. Prior to February 13, 2014, the criteria for an initial compensable disability rating for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. § 4.124a DC 8520 (2017). 3. From February 13, 2014 to April 30, 2017, the criteria for an initial disability rating greater than 10 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. § 4.124a DC 8520 (2017). 4. From May 1, 2017, the criteria for an initial disability rating greater than 40 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. § 4.124a DC 8520 (2017). 5. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2014); 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.16, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in correspondence dated January 19, 2010. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Law and Analysis for Increased Ratings The Veteran is seeking higher disability ratings for his service-connected lumbar disc disease and associated right lower extremity radiculopathy. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155 (2014); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Lumbar Degenerative Disc Disease The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. The Veteran's lumbar disc disease is currently rated as 40 percent disabling under DC 5242. There also separate compensable disability ratings in effect for radiculopathy involving the right lower extremity under DC 8520. A discussion of the Veteran's neurological disability (radiculopathy) is contained in separate section of this decision. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5); see also Lewis v. Derwinski, 3 Vet. App. 259 (1992) (ankylosis is immobility and consolidation of a joint, or stiffening and fixation of a joint); Nix v. Brown, 4 Vet. App. 462, 465 (1993); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Any associated neurological abnormalities (e.g., bowel or bladder impairment) are evaluated separately under the appropriate diagnostic code. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks in the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Normal forward flexion of the thoracolumbar segment of the spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V. In support of the current claim, the Veteran underwent VA examination in May 2010. The examiner thoroughly reviewed the claims file as well as the Veteran's prison medical records. Since his last evaluation he denied having any specific reinjury to the low back or surgical intervention. Review of the Veteran's prison medical records show that he had been seen periodically in sick call with complaints of exacerbated low back pain. However there was no evidence in the sick call records that he had been placed on any written bed rest for incapacitating episodes in the last 12 months. X-rays from June 2008 show mild degenerative disc disease of the lower lumbar spine. The Veteran's current complaints were of constant low back pain involving the lower lumbar spine and the right paravertebral muscles that he rated as 6 out of 10. He reported daily flares 8 out of 10 that are relieved within 30 minutes to an hour with rest, using a TENS unit, applying ice or heat and stretching exercises. He denied the use of any medication, back brace, or assistive devices. He also denied any bladder or bowel incontinence. The Veteran stated that in the last year he has had two episodes of incapacitation with written bed rest orders for two days each by the infantry physician; however, this is not supported in his prison treatment records. The Veteran states most often his pain is localized with no specific radicular symptoms, although he occasionally has paresthesias along the right lateral leg when sitting for more than 30 minutes to an hour. The Veteran was not sure what specifically triggered his severe flares stating that that they most often occur for no apparent reason, but were occasionally precipitated by squatting or twisting. During a flare it is painful to ambulate but the pain is alleviated by rest for 30 minutes to an hour. In between flares the Veteran has no limitations with walking or standing. However he avoids any kind of lifting due to fear of causing further damage to his back. The Veteran claims it does take longer to dress due to his chronic low back pain, but denies any specific interference or needing assistance with his activities of daily living related to his service-connected lumbar condition. Currently the Veteran was employed in the prison system involved with data entry; therefore, this job was sedentary in that he works about six hours a day without any problems. He stated he was not able to do any sort of heavy or light manual labor type work because of his chronic low back pain. In addition, prior to his incarceration 19 years ago the Veteran stated he worked at Fort McCoy in chief of operations. Although he is scheduled to be released in the year 2025, he is not sure of what type of employment he will do when released, but is convinced he would not be able to do any sort of physical labor-type job. The examiner concluded that the Veteran could do a sedentary type job as long as he is able to stand and stretch for a few minutes every hour. On examination the Veteran was noted to have a slow, but steady gait without the use of braces or assistive devices and no evidence of any unusual shoe wear. During the interview he was noted to be sitting at 90 degrees flexion for approximately 20 minutes without evidence of obvious discomfort. He was also observed to sit and rise out of a chair, transfer on and off the exam table and lay supine and sit up with minimal discomfort of the lower back. The thoracolumbar spine was straight with no abnormal curvature or posture when standing. There was decreased range of motion at 30 degrees flexion, 15 degrees extension, 20 degrees left and right lateral flexion and 20 degrees left and right rotation. He complained of pain of the right lumbar spine from L3-Sl before range of motion with increased pain at all maximum range of motions. This pain subsided in the neutral position, but recurred with each repetition of motion with no evidence of spasms, weakness, fatigue or incoordination after three repetitions of motion. There were no flares witnessed following repetitive motion and therefore, additional loss of function could not be determined without resorting to mere speculation. There was tenderness with palpation over the lower lumbar spine from L4-Sl and the right paraspinal muscles of L3-S1, but no tenderness over sacroiliac joints bilaterally. Straight leg raising test at 30 degrees bilaterally produced complaints of right-sided low back pain but no radicular pain in legs. The Veteran had good muscle tone and bulk of the back and both lower extremities with no atrophy noted and strength was normal at 5/5 bilaterally. Deep tendon reflexes of both lower extremities were normal at 2+ and symmetrical with no sensory or motor loss noted. The Veteran was able to rise and ambulate on toes and heels with no evidence of weakness or footdrop. The Veteran was next examined for his spine disability in February 2014. He continued to complain of low back pain as well as pain and numbness in the right leg. Treatment has included 6 injections which have not provided any long term relief. The most recent MRI scan revealed multilevel disc disease with the most significant findings at L5-S1 on the right. Clinically the Veteran had L5 radiculopathy. There was no history of hospitalization or surgery. On examination, range of motion of the thoracolumbar spine showed flexion to 25 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral rotation to 20 degrees, all with pain at the end range of motion. The Veteran able to perform repetitive-use testing with 3 repetitions with no additional limitation following testing. However there was additional functional loss and/or impairment after repetitive use testing, including less movement than normal, pain on movement, disturbance of locomotion, interference with sitting, standing, and weight-bearing and lack of endurance. There was localized tenderness and muscle spasm of the right paraspinals that did not result in an abnormal gait or spinal contour, and no guarding. No flares were witnessed during or following the three repetitions of motion; therefore, significant additional limitations of functional ability due to pain, weakness, fatigability, or incoordination cannot be determined or described without mere speculation. The neurological portion of the exam revealed normal motor strength of 5/5 in the right lower extremity, normal muscle tone and no evidence of atrophy. Reflex examination revealed knee and ankle jerk was normal at 2+ bilaterally. Sensory examination was normal for light touch throughout both lower extremities except for decreased sensation in the right foot. Straight leg raising was positive on the right, but there was constant moderate radicular pain and numbness as well as mild paresthesia/dysesthesias in the right lower extremity indicative of mild right L5 radiculopathy. There was no ankylosis. The examiner found there was no IDS, but the Veteran regularly used a cane for his back condition. There were no incapacitating episodes over the last 12 months. It was noted that the major functional impact was Veteran would be limited to sedentary work. The clinical impression was degenerative arthritis and intervertebral disc syndrome of the spine. When examined by VA in May 2017 the Veteran reported that his back symptoms have progressed/increased over the past 6-7 years. He rated his pain as at least a 7/10 at almost all times of the day, going up to a 9-10/10 with activity. The pain is located in the lower back, and radiates down the right leg to the ankle and toes, with associated numbness, tingling, and weakness. The Veteran used a wheelchair to ambulate and was only able to stand or walk short distances with the use of a cane. His pain is exacerbated by periods of sitting/standing for longer than 5 minutes and he is severely limited in ability to stand/walk/sit for almost any period of time. He was only able to walk for only 10-20 feet with the use of a cane and takes medication with minimal/no relief. There was no history of surgery or brace use. On examination range of motion of the thoracolumbar spine showed flexion to 20 degrees, extension, rotation and lateral bending were all to 10 degrees, bilaterally. He was unable to perform repetitive use testing secondary to pain. There was tenderness to palpation over the lower lumbar spine. Muscle spasm and guarding limited examination of the lower spine/back. Neurological examination revealed muscle strength testing was slightly weakened at 4/5 throughout. Muscle tone was normal and there was no atrophy. Reflex examination was normal at 2+ and sensory examination was decreased for light touch. Straight leg raising was positive with evidence of severe radicular pain in the right lower extremity. There was no evidence of ankylosis and there were no other neurologic abnormalities, including bowel or bladder problems. The Veteran reported flares 2-3 times per month with almost any activity, requiring bedrest for 3 days at a time however noted that he does not go to a physician for these flares as he is currently incarcerated and one is not available at all times. The examiner found the Veteran's reports of episodes IDS were the equivalent of at least six weeks of bed rest, but that the Veteran did not seek medical attention during these flares due to his incarceration. The Veteran also reported the regular use of wheelchair and cane and that his spine disability impacted his ability to work in that he was severely limited in work requiring almost any ambulation or standing. The Board finds that the criteria for a rating greater than 40 percent for the Veteran's lumbar spine disability are not met. VA treatment records and VA examination reports throughout the pendency of the claim contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. The record shows flexion to at least 20 degrees, when considering additional functional loss due to repetitive use. This measurable range of lumbar spine motion indicates that the Veteran does not have ankylosis, much less unfavorable ankylosis, or a disability akin to an individual with ankylosis as required for a 50 percent, or 100 percent rating. Thus, the Board finds that the criteria for an evaluation greater than 40 percent under DC 5242 are not met. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995), this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board acknowledges that the examiners could not describe any significant additional limitations of functional ability during flare-ups or after repetitive use without resorting to speculation because the Veteran was not being examined while a flare-up was taking place. This is a medical rationale recently deemed inadequate by the Court of Appeals for Veterans Claims (the Court) in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In addition, the Court, in Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, as discussed above, a higher rating for the Veteran's low back disability on the basis of limitation of motion is warranted only on evidence of ankylosis; as this is not shown, the Board finds that the Court's holdings in Sharp and Correia are not applicable to this case. As such, further examination or opinion is unnecessary to decide the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Additionally, an increased evaluation is not warranted under the criteria for IDS, as the Veteran has not reported incapacitating episodes which required bed rest prescribed by a physician. The Board acknowledges the Veteran's account of chronic back pain including having monthly incapacitating episodes of acute lumbar back pain associated with degenerative disc disease that lasted six weeks and required bed rest in the past 12 months. However what is lacking is objective documentation that any physician prescribed the bed rest or that the Veteran was treated by a physician for any period approaching a total duration of even one week during a 12 month period. Thus, an increased evaluation under this diagnostic codes is not for assignment. See 38 C.F.R. § 4.71a, DC 5243. The Board has also considered whether separate evaluations are for assignment for any objective neurologic manifestations of the Veteran's lumbar spine disability. As noted above, the Veteran has been assigned separate disability ratings for his neurological manifestations under DC 8520, which are discussed in a separate section of this decision. Additionally, the evidence of record found no left leg neurological manifestations - the 2017 VA examiner found that with the exception of diminished left lower extremity reflexes, the Veteran had normal muscle strength, sensory examination, and negative straight leg raising. Accordingly, the evidence does not support the award of a separate evaluation for any objective neurological manifestations of the left lower extremity. The preponderance of the evidence does not reflect symptoms that more nearly approximate the criteria for a rating higher than 40 percent. As such, the benefit of the doubt doctrine is not for application and the claim for an increased rating for lumbar spine disability for such period is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. Radiculopathy of the Right Lower Extremity The Veteran's service-connected radiculopathy of the right lower extremity is currently rated as 10 percent disabling from February 13, 2014 to April 30, 2017, and 40 percent disabling from May 1, 2017 under DC 8520 for paralysis of the sciatic nerve. Neuritis of the sciatic nerve is rated under DC 8620, and neuralgia of the sciatic nerve is rated under DC 8720. Under these diagnostic codes DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires moderate incomplete paralysis, a 40 percent rating requires moderately severe incomplete paralysis, and a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. The next higher evaluation of 80 percent requires complete paralysis; 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, DCs 8520, 8620, 8720. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The words "slight," "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. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. I. For the period prior to February 13, 2014 Relevant VA treatment records prior to February 2014 include VA and private outpatient treatment records dated from 1996 which show treatment for an exacerbation of low back pain after a recent lifting incident. There were no complaints of radicular symptoms into the lower extremities. See clinical records from Waupun Memorial Hospital. During the neurological portion of a May 2010, VA orthopedic examination, the Veteran reported localized pain with no specific radicular symptoms, but did have occasional paresthesias along the right lateral leg when sitting for more than 30 minutes While straight leg raising test at 30 degrees bilaterally produced complaints of right-sided low back pain, there was no radicular pain in legs. The Veteran had good muscle tone and bulk of the back and both lower extremities with no atrophy noted and strength was normal at 5/5 bilaterally. Deep tendon reflexes of both lower extremities was normal at 2+ and symmetrical with no sensory or motor loss noted. The Veteran was able to rise and ambulate on toes and heels with no evidence of weakness or footdrop. Records from the Department of Corrections in Wisconsin dated 2012 to 2013 show a diagnosis of radiculopathy of the right lower extremity, but do not indicate a worsening in symptoms to warrant a compensable evaluation. There are no specific findings of sensory or motor loss, muscle weakness, atrophy, or other limitations with respect to either lower extremity. Accordingly, the Board finds that prior to February 13, 2014, the level of disability contemplated under DC 8520 to support the assignment of a separate compensable evaluation for radiculopathy of the right lower extremity is absent. II. For the period from February 13, 2014 to April 30, 2017 For the period from February 13, 2014 to April 30, 2017, the Veteran's right lower extremity radiculopathy has been rated as 10 percent disabling for mild incomplete paralysis of the sciatic nerve. The current 10 percent disability rating is based, in part on findings from a February 12, 2014 VA examination. The neurological portion of the exam revealed normal motor strength of 5/5 in the right lower extremity, normal muscle tone and no evidence of atrophy. Reflex examination revealed knee and ankle jerk was normal at 2+ bilaterally. Sensory examination was normal for light touch throughout both lower extremities except for decreased sensation in the right foot. Straight leg raising was positive on the right and the Veteran reported constant moderate radicular pain and numbness as well as mild paresthesia/dysesthesias in the right lower extremity indicative of mild right L5 radiculopathy. There are no subsequent treatment records dated since February 2014 that indicate a worsening in symptoms, such as increased muscle weakness, atrophy, or limitations with respect to the right lower extremity to warrant higher an evaluation for the Veteran's radiculopathy. Applying the regulations to the facts in the case, the Board finds that during the time period in question, the criteria for a rating higher than 10 percent were not met. The record during this timeframe largely reflects that with the exception of diminished sensation in the right foot, there was no evidence of diminished strength or reflexes, muscle spasm, muscle atrophy, paralysis or foot drop that would warrant a higher rating or demonstrate more than a mild degree of incomplete paralysis of the sciatic nerve. Moreover, the VA examiner in 2014 specifically provided a diagnosis of mild right L5 radiculopathy. Given the evidence as outlined above, the Board finds that the current 10 percent rating adequately reflects the Veteran's impairment from radiculopathy during this portion of the appeal period. Therefore, the Board is of the opinion that from February 13, 2014 to April 30, 2017, the objective findings of diminished sensation and the Veteran's subjective complaints are contemplated by the assigned 10 percent rating, and that a higher rating is not warranted. III. For the period since May 1, 2017 The current 40 percent disability rating is based, in part on findings from a May 1, 2017 VA examination. At that time the Veteran reported lower back pain that radiates down the right leg to his ankle/toes, with associated numbness/tingling and weakness. Neurological examination revealed muscle strength testing was slightly weakened at 4/5 throughout. Muscle tone was normal and there was no atrophy. Reflex examination was normal at 2+ and sensory examination was decreased for light touch. Straight leg raising was positive and the Veteran reported severe radicular pain in the right lower extremity. There was no evidence of ankylosis or other neurologic abnormalities, including bowel or bladder problems. While this evidence arguable supports the grant of a 40 percent disability rating, a higher evaluation is not warranted. Indeed, as is illustrated by the objective findings during this timeframe, the Veteran's right lower extremity neuropathy cannot be properly described as severe in degree. Motor examination revealed diminished muscle strength, but did not disclose any wasting in the lower extremities and there was no evidence of muscle spasm, paralysis or foot drop. Use and control of the right lower extremity are primarily intact, and hence assignment of a higher evaluation based on a finding of severe incomplete paralysis with marked muscular atrophy is not appropriate. Therefore, the evidence of record does not indicate that the right lower extremity radiculopathy is more than moderately severe. Therefore, the Board is of the opinion that since May 1, 2017, the objective findings and the Veteran's subjective complaints are contemplated by the assigned 40 percent rating, and that a higher rating is not warranted. III. Law and Analysis for TDIU The Veteran is seeking a TDIU. In this regard, the Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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). In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). However the Board has no authority to assign a TDIU rating under 4.16(b) in the first instance and may only refer the claim to the Director of Compensation Services for extra-schedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran is service connected for degenerative disc disease of the lumbar spine, rated as 40 percent disabling; L5 radiculopathy of the right lower extremity, rated as 10 percent disabling from February 13, 2014 and 40 percent disabling from May 1, 2017; and history of left wrist fracture and bilateral hearing loss, each rated as noncompensably disabling. The combined rating for the Veteran's service-connected disabilities was 50 percent from February 13, 2014 and 60 percent from May 1, 2017. Since the combined schedular rating for two or more disabilities must be at least 70 percent, the Veteran does not meet the minimum percentage rating required for consideration of assignment of TDIU. 38 C.F.R. § 4.16(a). That said, failure to satisfy the percentage standards is not an absolute bar to a grant of a TDIU. If the record demonstrates that the Veteran is unemployable by reason of service-connected disabilities, but otherwise fails to meet the percentage standards, the case should be submitted to the Director of VA's Compensation Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). For the Veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue are to be addressed if such a referral is made. 38 C.F.R. § 4.16(b). The Veteran asserts that he is unable to follow substantially gainful occupation as a result of his service connected back disability, rendering him unemployable. He testified that he has been incarcerated since 1991 and prior to that was employed as the Chief of Branch Operations at a training facility in Wisconsin. He does not have any secondary schooling or training outside of the military. However he received a certificate in computer/keyboarding in the prison's vocational program. He was employed in both sedentary jobs and jobs where he was on his feet and up until four years prior when he transferred to another facility. He testified that he is currently unemployed because of the physical requirements related to the available prison jobs. Although it is clear that the Veteran's lumbar spine and radiculopathy disabilities affect him in an occupational setting, the Board will not repeat, in its entirety, the discussion of the findings from the previous examinations especially given that the above analysis details the level of impairment and the appropriate disability ratings to account for such impairment. None of the VA examination reports indicate that the functional effects caused by the Veteran's service-connected disabilities alone render him unemployable. When examined by VA in May 2010, the examiner noted the Veteran was employed in the prison system involved with data entry; therefore, this job was sedentary in that he works about six hours a day without any problems. He stated he was not able to do any sort of heavy or light manual labor type work because of his chronic low back pain. The examiner concluded that the Veteran could do a sedentary type job as long as he is able to stand and stretch for a few minutes every hour. Likewise, the VA examiners in February 2014 and May 2017 both concluded the Veteran would be limited to sedentary work as the Veteran would be severely limited in work requiring almost any ambulation or standing. The Board finds the opinion of the VA medical opinions to be highly probative. While the Board recognizes the nature and extent of the Veteran's overall disability, the evidence of record does not support the claim that his service-connected lumbar disc disease and radiculopathy alone are sufficient to produce unemployability even when he disabilities are assessed in the context of subjective factors such as his occupational and educational background. While the Veteran's service-connected disabilities keep him from doing the kind of physical work he may have previously engaged in, he has the skills, experience, and education to do sedentary work based upon his high school education, taking courses in computers/keyboarding through the participation in the prison's training program, and his employment history in data entry during his incarceration. For all the foregoing reasons, the claim for entitlement to a TDIU is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A disability rating greater than 40 percent for degenerative disc disease of the lumbar spine is denied. A compensable disability rating for L5 radiculopathy of the right lower extremity prior to February 13, 2014, greater than 10 percent prior to May 1, 2017, and greater than 40 percent since May 1, 2017 is denied. Entitlement to a TDIU is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs