Citation Nr: 1757744 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-20 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for lumbar spine degenerative disc disease with scoliosis, evaluated as 10 percent disabling prior to July 19, 2013, and as 20 percent disabling on and after that date. 2. Entitlement to an increased rating for left lower extremity lumbar radiculopathy with diabetic peripheral neuropathy, rated as 10 percent disabling from October 16, 1987, through July 18, 2013; 20 percent disabling from July 19, 2013, through May 20, 2015; and 40 percent disabling on and after May 21, 2015. 3. Entitlement to an increased rating for right lower extremity lumbar radiculopathy with diabetic peripheral neuropathy, rated as 10 percent disabling from July 9, 1997, through July 18, 2013; 20 percent disabling from July 19, 2013, through May 20, 2015; and 40 percent disabling on and after May 21, 2015. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from June 1956 to September 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A notice of disagreement was received in August 2012, a statement of the case was issued in June 2013, and a substantive appeal was received in July 2013. This case was previously before the Board in February 2015 and November 2016. In a July 2014 rating decision, the RO awarded separate 10 percent ratings for lumbar radiculopathy with diabetic peripheral neuropathy of the lower extremities effective July 19, 2013. Because the Veteran is presumed to seek the maximum available benefits, these issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A claim for entitlement to a TDIU is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Further, VA's duty to maximize a claimant's benefits includes consideration of whether the Veteran's disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C.A. § 1114. The Veteran is in receipt of a 100 percent rating, effective May 21, 2015. The presence of a 100 percent disability rating does not necessarily render the issue of TDIU moot and thus it is listed as above. A May 2015 Peripheral Neuropathy examination noted the Veteran would have difficulty with manipulation of small objects and/or fine motor control due to lack of sensation. A 2011 VA Spine examination noted the Veteran was an accountant. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. Prior to July 19, 2013, even when considering functional impairment caused by factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint, as well as actually painful, unstable, or malaligned joints due to healed injury, the Veteran's lumbar spine degenerative disc disease with scoliosis manifested in limitation of flexion to no less than 70 degrees. 2. On and after July 19, 2013, the Veteran's low back disability has manifested in guarding or muscle spasm that is severe enough to result in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis, but not in limitation of flexion to no more than 30 percent or favorable ankylosis. 3. Prior to July 19, 2013, the Veteran's left lower extremity lumbar radiculopathy with diabetic peripheral neuropathy manifested in no more than mild incomplete paralysis. 4. From July 19, 2013, through May 20, 2015, the Veteran's left lower extremity lumbar radiculopathy with diabetic peripheral neuropathy manifested in no more than moderate incomplete paralysis. 5. On and after May 21, 2015, the Veteran's left lower extremity lumbar radiculopathy with diabetic peripheral neuropathy manifested in no more than moderately severe incomplete paralysis. 6. Prior to July 19, 2013, the Veteran's right lower extremity lumbar radiculopathy with diabetic peripheral neuropathy manifested in no more than mild incomplete paralysis. 7. From July 19, 2013, through May 20, 2015, the Veteran's right lower extremity lumbar radiculopathy with diabetic peripheral neuropathy manifested in no more than moderate incomplete paralysis. 8. On and after May 21, 2015, the Veteran's right lower extremity lumbar radiculopathy with diabetic peripheral neuropathy manifested in no more than moderately severe incomplete paralysis. 9. The Veteran's service-connected disabilities have not been shown to prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to July 9, 2013, the criteria for a rating in excess of 10 percent for lumbar spine degenerative disc disease with scoliosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017). 2. From July 9, 2013, the criteria for a rating in excess of 20 percent for lumbar spine degenerative disc disease with scoliosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017). 3. Prior to July 19, 2013, the criteria for the assignment of a rating in excess of 10 percent for left lower extremity lumbar radiculopathy with diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 4. From July 19, 2013, through May 20, 2015, the criteria for the assignment of a rating in excess of 20 percent for left lower extremity lumbar radiculopathy with diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 5. On and after May 21, 2015, the criteria for the assignment of a rating in excess of 40 percent for left lower extremity lumbar radiculopathy with diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 6. Prior to July 19, 2013, the criteria for the assignment of a rating in excess of 10 percent for right lower extremity lumbar radiculopathy with diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 7. From July 19, 2013, through May 20, 2015, the criteria for the assignment of a rating in excess of 20 percent for right lower extremity lumbar radiculopathy with diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 8. On and after May 21, 2015, the criteria for the assignment of a rating in excess of 40 percent for right lower extremity lumbar radiculopathy with diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 9. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA's duty to notify was satisfied by letters that were sent to the Veteran in May 2011, November 2011, and March 2017. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist. 38 U.S.C.A. § 5103A. I. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. A. Low Back The Veteran has claimed entitlement to an increased rating for lumbar spine degenerative disc disease with scoliosis. Prior to July 19, 2013, this disability was assigned a 10 percent rating. On and after that date, it has been rated as 20 percent disabling This disability is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. This diagnostic code directs that the disability be rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula assigns a 10 percent evaluation for forward flexion greater than 60 degrees but not greater than 85 degrees; or, combined range of motion greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion greater than 30 degrees but not greater than 60 degrees; or, combined range of motion not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. An evaluation higher of 40 percent is warranted when there is forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine. These criteria are controlling regardless of whether there are 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. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). Actually painful, unstable, or malaligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the Veteran did not report for a VA examination that was scheduled for March 2017. Therefore, any information that may have been gained from this examination, to include any information on range of motion on active versus passive motion, without or without weightbearing, or on flare-up, is unavailable. 1. At 10 Percent Prior to July 19, 2013 The Board finds that the evidence of record prior to July 19, 2013, does not satisfy the criteria for a rating in excess of 10 percent, even when considering functional impairment caused by factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint, as well as actually painful, unstable, or malaligned joints due to healed injury. The relevant evidence of record, including the June 2011 VA spine examination report, notes that the Veteran reported severe weekly flare-ups that last hours. Precipitating factors included prolonged walking, standing, sitting, bending, twisting, and lifting/carrying. Alleviating factors included partial relief with rest and activity modification. It was noted that there was a history of fatigue, decreased motion, stiffness, weakness, spasm, and spine pain. The onset of pain was variable and dull, of mild severity. It lasts hours per day, every day, without radiation. He can walk up to three blocks. On examination, posture, head position, and gait were normal. There was no abnormal spinal curvature. There was objective evidence of spasm on the left and right side, as well as pain with motion and tenderness. There was no atrophy, guarding, or weakness. The muscle spasm, localized tenderness, or guarding were not severe enough to be responsible for abnormal gait or abnormal spinal contour. Flexion was from 0 to 70 degrees. Extension was 0 to 20 degrees. Left and right lateral flexion and rotation were to 30 degrees. There was objective evidence of pain on active range of motion. There was objective evidence of pain following repetitive motion, but there were no additional limitations after three repetitions of range of motion. The Veteran had a vertebral body fracture of L1,with less than 10 percent loss of height. Treatment records from this period do not reflect greater limitation of motion of the back, nor do they reflect muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Specifically, the evidence from this period does not reflect that the Veteran's back disability manifested in forward flexion not greater than 60 degrees; or, combined range of motion not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Therefore, the Board finds that entitlement to a rating in excess of 10 percent is not warranted prior to July 19, 2013. 2. At 20 Percent Effective July 19, 2013 In order to receive a rating in excess of 20 percent at any point during this portion of the appeals period, the evidence must reflect forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (for a 40 percent rating), or unfavorable ankylosis of the entire thoracolumbar spine (for a 50 percent rating). The Board finds that the record does not indicate such limitation. The June 2014 VA examination report indicates flexion to 70 degrees on initial measurement and following repetitive movement. There was no additional decrease in range of motion due to pain, weakness, fatigue, or lack of endurance. Functional impairment manifested in less movement than normal, pain on movement, and interference with sitting, standing, and/or weightbearing. During flare-ups, it was estimated that the Veteran loses an additional 5 degrees of range of motion in all vectors, and that the pain limits lifting, carrying, prolonged standing, walking, and sitting. He had guarding or muscle spasm that is severe enough to result in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. The range of motion findings suggest a minimum range of motion of 65 degrees, which far exceeds the limitation of flexion to no more than 30 degrees that is required for a rating in excess of the current 20 percent. The June 2015 VA examination report notes forward flexion to 45 degrees with pain. There was no additional loss of function on repetitive movement. The Veteran reported that he did not experience flare-ups. The Veteran did not have intervertebral disc syndrome and did not have incapacitating episodes. Therefore, the Board finds that a rating in excess of 20 percent is not warranted on and after July 19, 2013. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, entitlement to increased ratings for the Veteran's service-connected low back disability above is not established. B. Radiculopathy of the Left and Right Lower Extremities The Veteran in the case at hand has claimed entitlement to increased ratings for radiculopathy of the left and right lower extremities. These disabilities have been rated as paralysis of the sciatic nerve pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). Diagnostic Code 8520 assigns a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis, which is characterized by foot dangle and drop, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as 'severe,' 'moderate,' and 'mild' are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2017). 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. § 4.124a (2017). 1. Left Lower Extremity The Veteran has been in receipt of a 10 percent rating (for mild incomplete paralysis) for his left lower extremity disability from October 16, 1987, through July 18, 2013. He has been in receipt of a 20 percent rating (for moderate incomplete paralysis) from July 19, 2013, through May 20, 2015. He has been in receipt of a 40 percent rating (for moderately severe incomplete paralysis) since May 21, 2015. a. At 10 Percent Effective from October 16, 1987, through July 18, 2013 Turning to the evidence of record, a December 1987 VA examination report notes that the Veteran's motor and deep tendon reflexes were all 2+ except left ankle jerk was 1+. There was reduced pinprick sensation, stocking and above distribution, only on the left foot to mid foot. There was no Babinski sign. He was diagnosed with very minimal sensory peripheral neuropathy in the left foot. The December 1987 report reflects that the Veteran's neurologic symptoms most closely approximated the 10 percent rating criteria of mild, incomplete paralysis of the left sciatic nerve. A November 1996 examination report notes that the Veteran had diminished, but present, ankle jerks bilaterally. An October 2000 NMC San Diego medical record notes 2+ pulses in the feet and normal sensation to light touch and pin prick. A May 2010 VA examination report notes that the Veteran had no radiculopathy and was neurologically asymptomatic. On examination, sensory testing to light touch and pin prick of right and left tibial nerves were normal. Motor strength of major muscle groups was 5/5, and deep tendon reflexes were normal. The June 2011 VA examination report notes knee jerk and ankle jerk of 1+ bilaterally. Babinski was normal. Sensory examination of the bilateral lower extremities found that L2-S1were affected. Vibration, position sense, pain on pinprick, and light touch were normal, while there was no dysesthesias. Motor examination revealed 5/5 for the hips, knees, ankles, and great toes. Muscle tone was normal and there was no muscle atrophy. Lasegue's sign was not positive. The Veteran denied symptoms of peripheral neuropathy at his June 2011 VA diabetes mellitus examination. Reflex, sensory, and detailed motor examinations were normal. The examiner determined that the evidence did not show neurologic disease. In terms of employment, it was noted that he was director of accounting. It was noted that he retired in 1997 and that he was eligible to do so by age or duration of work. A July 2011 record from the NMC San Diego noted that no sensory examination abnormalities were noted, and that monofilament wire test of the foot did not show a decreased sensation. The Board finds that a rating in excess of 10 percent is not warranted for radiculopathy of the left lower extremity from October 16, 1987, through July 18, 2013, as the Board finds that this disability manifested in no more than mild incomplete paralysis for the period at issue. The above evidence reflects that the Veteran has reported sensory deficits at some periods but has denied such deficits at other times. Furthermore, testing for this period has been largely normal. The testing that is described above reflects either normal findings or findings that indicate some diminished reflexes or sensations, but no absences. Muscle tone is described as normal throughout. The Board finds that this evidence is most consistent with mild incomplete paralysis. b. At 20 Percent Effective from July 19, 2013, through May 21, 2015 There are no pertinent VA examination reports during this period. Other than notations of peripheral neuropathy, the Veteran's medical treatment records from this period do not focus on his radiculopathy. The Board therefore finds that the evidence from this period does not reflect that his left lower extremity radiculopathy was more severe than was indicated by the 20 percent rating, which was assigned for moderate incomplete paralysis. c. At 40 Percent Effective from May 21, 2015 The June 2015 VA examination report notes that hip flexion was 4/5 bilaterally, and the rest of the muscle strength testing was 5/5. There was no atrophy. Knee reflexes were 2+, while ankle reflexes were absent. Sensory examination on the left side was normal for L2 and for L4/L5/S1, but it was decreased for L3/4 and L5. Babinski was normal; he had hypersensitivity of both feet plantar aspects; basic epicritic sensation was intact to bilateral lower extremities. Straight leg raise was negative. The Veteran had radicular pain on the left side that manifested in mild intermittent pain (usually dull); mild paresthesias and/or dysthesias; and mild numbness. He did not have constant pain that may be excruciating at times. He did not have any other signs or symptoms of radiculopathy. The examiner found that the Veteran's left sciatic nerve was involved and that the disability was of mild severity. The Veteran's medical treatment records are consistent with the disability description that was recorded in the June 2015 VA examination report. The Board finds that this evidence does not reflect that the Veteran's radiculopathy of the left lower extremity manifested most closely in severe incomplete paralysis. The most severe symptomatology that is noted in this examination report is the absence of ankle reflexes and the diminishment of hip flexion muscle strength. Even so, the VA examiner opined that this overall impairment was most consistent with a mild level of disability. The Board finds that, other than the absent ankle reflexes and the diminished muscle strength, the evidence from this period is consistent with the findings that were demonstrated during the earlier portions of the appeals period. The Board finds that, overall, the evidence from this period does not rise to the level to constitute severe incomplete paralysis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, entitlement to increased ratings for the Veteran's service-connected radiculopathy of the right lower extremity is not established. 1. Right Lower Extremity The Veteran has been in receipt of a 10 percent rating for his right lower extremity disability from July 9, 1997, through July 18, 2013. He has been in receipt of a 20 percent rating from July 19, 2013, through May 20, 2015. He has been in receipt of a 40 percent rating since May 21, 2015. a. At 10 Percent Effective from July 9, 1997, through July 18, 2013 The July 9, 1997, VA examination report notes that the Veteran has tingling in the right lower extremity, much more frequently than on the left, with pain also shooting up the outside of the right leg and a cramp in the hallux with extension. Sensory examination revealed minimal hypesthesia to cold only, distally on the right lower extremity but normal to touch and pin. He was diagnosed with minimal, early diabetic retinopathy. The July 1997 report reflects that the Veteran's neurologic symptoms most closely approximated the 10 percent rating criteria of mild, incomplete paralysis of the right sciatic nerve. A May 2010 VA examination report notes that the Veteran has no radiculopathy. It was noted that both feet do not have numbness. Intermittently, his right foot has paresthesias, diabetic neuritis. The June 2011 VA examination report notes knee jerk and ankle jerk of 1+ bilaterally. Babinski was normal. Sensory examination of the bilateral lower extremities note that L2-S1were affected. Vibration, position sense, pain on pinprick, and light touch were normal, while there was no dysesthesias. Motor examination revealed 5/5 for the hips, knees, ankles, and great toes. Muscle tone was normal and there was no muscle atrophy. Lasegue's sign was not positive. The Veteran denied symptoms of peripheral neuropathy at his June 2011 VA diabetes mellitus examination. Reflex, sensory, and detailed motor examinations were normal. The examiner determined that the evidence did not show neurologic disease. In terms of employment, it was noted that he was director of accounting. It was noted that he retired in 1997 and that he was eligible to do so by age or duration of work. A July 2011 record from the NMC San Diego noted that no sensory examination abnormalities were noted, and that monofilament wire test of the foot did not show a decreased sensation. Records from the NMC San Diego dated in or prior to July 2011 noted that the Veteran's neurological system was normal. Records dated from October 2011 and later noted slight decreased sensation in the big toes bilaterally. The Board finds that a rating in excess of 10 percent is not warranted for radiculopathy of the right lower extremity from July 9, 1997, through July 18, 2013, as the Board finds that this disability manifested in no more than mild incomplete paralysis for the period at issue. The above evidence reflects that the Veteran has reported sensory deficits at some periods but has denied such deficits at other times. Furthermore, testing for this period has been largely normal. The testing that is described above reflects either normal findings or findings that indicate some diminished reflexes or sensations, but no absences. Muscle tone is described as normal throughout. The Board finds that this evidence is most consistent with mild incomplete paralysis. b. At 20 Percent Effective from July 19, 2013, through May 21, 2015 There are no pertinent VA examination reports during this period. Other than notations of peripheral neuropathy, the Veteran's medical treatment records from this period do not focus on his radiculopathy. The Board therefore finds that the evidence from this period does not reflect that his right lower extremity radiculopathy was more severe than was indicated by the 20 percent rating, which was assigned for moderate incomplete paralysis. c. At 40 Percent Effective from May 21, 2015 The June 2015 VA examination report notes that hip flexion was 4/5 bilaterally, and the rest of the muscle strength testing was 5/5. There was no atrophy. Knee reflexes were 2+, while ankle reflexes were absent. Sensory examination on the right side was normal. Babinski was normal; he had hypersensitivity of both feet plantar aspects; basic epicritic sensation was intact to bilateral lower extremities. Straight leg raise was negative. The Veteran had radicular pain on the right side in the form of mild numbness. He did not have constant pain that might be excruciating at times; intermittent pain that was usually dull; or paresthesias and/or dysthesias. He did not have any other signs or symptoms of radiculopathy. The examiner indicated that the Veteran did not have any right-sided nerve roots involved. The Veteran's medical treatment records are consistent with the disability description that was recorded in the June 2015 VA examination report. The Board finds that this evidence does not reflect that the Veteran's radiculopathy of the right lower extremity manifested most closely in severe incomplete paralysis. The most severe symptomatology that is noted in this examination report is the absence of ankle reflexes and the diminishment of hip flexion muscle strength. Even so, the VA examiner opined that there was no paralysis of the right sciatic nerve. The Board finds that, other than the absent ankle reflexes and the diminished muscle strength, the evidence from this period is consistent with those findings that were demonstrated during the earlier portions of the appeals period. Overall, the evidence from this period does not rise to the level to constitute severe incomplete paralysis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, entitlement to increased ratings for the Veteran's service-connected radiculopathy of the right lower extremity is not established. II. TDIU A TDIU is assigned when the service-connected disability or disabilities at issue result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15 (2016). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. 38 C.F.R. § 4.16(a). A claim for a total compensation rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. The current appeal arises from an April 27, 2011, increased rating claim. Therefore, the period for consideration in this appeal begins on that date. During the relevant period, the Veteran was in receipt of a combined 60 percent rating prior to July 19, 2013; a combined 90 percent rating July 19, 2013, through May 20, 2015; and a combined 100 percent rating on and after May 21, 2015. Prior to May 21, 2013, service connection was in effect for PTSD, diabetes mellitus, radiculopathy of the left and right lower extremities, lumbar spine degenerative disc disease, hypertension, and shrapnel wound scars of both legs. On and after that date, service connection has additionally been in effect for peripheral neuropathy of the bilateral upper extremities. The Board only meets the schedular TDIU criteria on and after July 19, 2013. In any event, for the entire appeals period, the Board must determine whether the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. Turning to the relevant evidence of record, the June 2011 VA diabetes mellitus examination report noted that he was director of accounting. It was noted that he retired in 1997 and that he was eligible to do so by age or duration of work. A June 2011 Vet Center Intake Assessment notes that the Veteran retired from the military in September 1980 and returned to school and obtained an accounting degree. He worked for the Department of Defense from 1981 to 1989. At one point, he reported that he was in charge of renovation of an ammunition DoD facility that changed the propellants in older ammunition. In January 1989, he applied for a position in Japan working for the U.S. Navy East Command. His command sent him to comptroller school in 1993, and he worked in that position until 1998. He retired as a GS-12 with 41 years of working in the government in 1998. He went to work for the San Diego District College in 2000 until December 2009. He reported that his work involved processing purchasing documents. The Veteran's usual occupation was noted to be an accountant. He retired in 2009. He was noted to have retired because he was eligible by age or duration of work. As noted above, the June 2011 VA diabetes mellitus examination report notes that the Veteran had been director of accounting. It was noted that he retired in 1997 and that he was eligible to do so by age or duration of work. A June 2011 VA examination report noted that the Veteran's lumbar spondylosis affected his usual occupation in that he had to be assigned different duties. With respect to effects on occupational activities, it was noted the Veteran has decreased mobility, problems with lifting and carrying, and pain. The Veteran had problems with usual daily activities in that his back disability limited his ability to perform sports, exercise, chores, shopping, and travel. A June 2014 VA PTSD examination report notes that the Veteran's symptoms were not to severe as to interfere with occupational functioning. The June 2015 VA examination report notes that the Veteran's spine impacts his ability to work in that he has a deliberate gait favoring one side with a list towards the left. His work limitations would include no walking greater than 250 meters (or 2 city blocks); no heavy lifting, carrying, bending, stooping, squatting, or working in tight space. It was noted that he was fit for sedentary work only. The Board finds that, based on the above, entitlement to a TDIU is not warranted at any point that is contemplated by this appeal. The most credible evidence of record reflects that the Veteran retired due to age or duration of employment, not because of his back disability. See, e.g., 38 C.F.R. § 4.19 (2017) (unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating). Specifically, the Veteran's statements when seeking treatment at the Vet Center reflect that he voluntarily retired rather than being forced to due to his back. In addition, the VA examination reports indicate retirement due to age or work duration rather than disability. Furthermore, the medical evidence clearly reflects that the Veteran's education and work experience make him suited for sedentary employment, and the above evidence expressly finds that he is capable of sedentary employment comparable to and comports with his professional training. In light of the above, the Board finds that entitlement to a TDIU is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for lumbar spine degenerative disc disease with scoliosis, evaluated as 10 percent disabling prior to July 19, 2013, and as 20 percent disabling on and after that date, is denied. Entitlement to an increased rating for left lower extremity lumbar radiculopathy with diabetic peripheral neuropathy, rated as 10 percent disabling from October 16, 1987, through July 18, 2013; 20 percent disabling from July 19, 2013, through May 20, 2015; and 40 percent disabling on and after May 21, 2015, is denied. Entitlement to an increased rating for right lower extremity lumbar radiculopathy with diabetic peripheral neuropathy, rated as 10 percent disabling from July 9, 1997, through July 18, 2013; 20 percent disabling from July 19, 2013, through May 20, 2015; and 40 percent disabling on and after May 21, 2015, is denied. Entitlement to a TDIU is denied. ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs