Citation Nr: 1716598 Decision Date: 05/16/17 Archive Date: 05/22/17 DOCKET NO. 04-13 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity prior to June 6, 2012, and entitlement to a rating in excess of 20 percent from that date. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 6, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1974, and from March 1978 to April 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which in pertinent part, denied a rating in excess of 10 percent for radiculopathy of the right lower extremity. An October 2012 rating decision increased the rating for radiculopathy to 20 percent, and granted entitlement to TDIU, effective June 6, 2012. The Board denied the claims for a rating in excess of 20 percent from June 6, 2012, and a rating in excess of 10 percent prior to June 6, 2012, for radiculopathy of the right lower extremity, and denied entitlement to an effective date prior to June 6, 2012, for TDIU, in an April 2015 Board decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2016, the Court vacated and remanded for further consideration, those portions of the Board's April 2015 decision which denied entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy prior to June 6, 2012, entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy from June 6, 2012, and entitlement to an effective date prior to June 6, 2012, for TDIU. The case has now returned to the Board for further appellate review. The issue of entitlement to an increased rating for radiculopathy of the left lower extremity has been raised by the record in a January 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). Additionally, a December 2016 deferred rating decision indicated that the issue of entitlement to a waiver of recovery of an overpayment of disability compensation must be readjudicated, although the Decision Review Officer (DRO) does not have custody over waivers of recovery. As such, the AOJ must either readjudicate the claim or prepare the claim for Board review. FINDINGS OF FACT 1. For the entire period of appeal, the Veteran's service-connected radiculopathy of the right lower extremity has more nearly approximated moderate incomplete paralysis of the sciatic nerve. 2. The Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation since the inception of the appeal. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent under Diagnostic Code (DC) 8520, but no higher, for radiculopathy of the right lower extremity have been met for the entire appeal period. 38 U.S.C.A. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, DC 8520 (2016). 2. The criteria for entitlement to TDIU effective May 28, 2009, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Notice The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.159 (2016). Under the VCAA, VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial AOJ decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). In this case, the AOJ mailed a pre-adjudicatory letter dated November 2009, which met the content requirements of the VCAA for an increased rating claim. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate any claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his or her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA fulfilled its duty to assist by attempting to obtain evidence needed to substantiate the claim on appeal. As was noted in the previous April 2015 Board decision, service treatment records, medical records, and the Veteran's incarceration records, have all been associated with the record. There are no outstanding requests to obtain any private medical records which the Veteran has both identified and authorized VA to obtain on his behalf. As such, VA has fulfilled its duty to assist with obtaining additional evidence. Lay statements of the Veteran have been associated with the record and have been reviewed. In addition, in June 2012 and June 2015, VA afforded the Veteran with medical examinations relating to his claim. The reports from these examinations indicate that the examiners reviewed the Veteran's medical history, performed thorough in-person examinations, and offered assessments of the severity of the disabilities based on findings and medical principles. The VA examination reports have been supplemented by the Veteran's description of symptoms within his lay competence. A review of the objective evidence reflects no credible evidence of worsening since the most recent June 2015 examination. As such, the Board finds that the totality of the record contains all information necessary to evaluate the Veteran's disabilities, and that the lay and medical evidence, considered collectively, do not reflect an increased severity of disability warranting additional examination. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to this claim. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Ratings Law and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis Radiculopathy of the Right Lower Extremity In its October 2016 decision, the Court found that the Board provided an inadequate statement of its reasons or bases for finding that the Veteran's symptoms of radiculopathy of the right lower extremity were at most "mild," and thus not entitled to a disability rating in excess of 10 percent for the period prior to June 6, 2012. The Court also determined that the Board provided an inadequate statement of reasons or bases in its finding that the Veteran did not exhibit more than a moderate degree of incomplete paralysis of the sciatic nerve for the period after June 6, 2012. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term "incomplete paralysis," indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. Neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. Under Diagnostic Codes 8520, for incomplete paralysis, and 8620, for neuritis, a 10 percent disability rating is assigned for mild incomplete paralysis. If the condition is considered "moderate," a 20 percent disability rating is provided. If the condition is considered "moderately severe," a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered "severe, with marked muscular atrophy." 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. VA's Adjudication and Procedures Manual (M21-1) also provides additional guidance for determining the severity of peripheral nerve disabilities. The following table provides guidelines for assessing the level of incomplete paralysis for upper and lower peripheral nerves: Degree of Incomplete Paralysis Description Mild * As this is the lowest level of evaluation for each nerve, this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for SC purposes. * In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. * A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate?? * Moderate is the maximum evaluation reserved for the most significant cases of sensory-only impairment (38 CFR 4.124a). o Symptoms will likely be described by the claimants and medically graded as significantly disabling. o In such cases a larger area in the nerve distribution may be affected by sensory symptoms. * Other sign/symptom combinations that may fall into the moderate category include o combinations of significant sensory changes and reflex or motor changes of a lower degree, or o motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. * Moderate is also the maximum evaluation that can be assigned for o neuritis not characterized by organic changes referred to in 38 CFR 4.123, or o neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 CFR 4.124). Moderately Severe * The moderately severe evaluation level is only applicable for involvement of the sciatic nerve. * This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 CFR 4.123. * Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. * Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 CFR 4.124a, DC 8520. Severe * In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. * Trophic changes may be seen in severe longstanding neuropathy cases. * For the sciatic nerve (38 CFR 4.124a, DC 8520) marked muscular atrophy is expected. * Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. * Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 CFR 4.123). M21-1, pt. III, subpt. iv. ch. 4, § G(4)(c). The M21 also provides that in making a choice between mild and moderate, the mild level of evaluation would be more reasonably assigned when sensory symptoms are: recurrent but not continuous, assigned a lower medical grade reflecting less impairment, and/or are affecting a smaller area in the nerve distribution. M21-1, pt. III, subpt. iv. ch. 4, § G(4)(b). The moderate level of evaluation should be reserved for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are: continuous, assigned a higher medical grade reflecting greater impairment, and/or are affecting a larger area in the nerve distribution. M21-1, pt. III, subpt. iv. ch. 4, § G(4)(b). In Miller v. Shulkin, the Court recently stated that "Although the note preceding §4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level." See Miller v. Shulkin, No. 15-2904, 2017 U.S. App. Vet. Claims LEXIS 317, at *9-10 (Ct. Vet. App. Mar. 6, 2017). The M21 was also recently updated and reflects this change. Specifically, the manual states that the provision for a moderate level of evaluation does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness, or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. M21-1, pt. III, subpt. iv. ch. 4, § G(4)(b). In a July 2008 treatment note from the Greensville Correctional Center, the Veteran reported numbness in his right leg related to his back. A separate note recorded that his deep tendon reflexes were preserved in both legs and that he had sensation in both feet. The Veteran reported his radiculopathy of the right lower extremity had increased in severity in December 2009. At a March 2010 VA examination, the Veteran reported that his right leg pain and numbness had worsened since the most recent VA examination was performed in August 2007. He also reported weakness, stiffness, and impaired coordination, and pain in his foot radiating from the upper right leg. The Veteran also experienced numbness in his toes which affected his coordination and caused him to feel as if he would fall at times. A muscle strength test of his right lower extremity was normal. A sensory function examination of the right lower extremity revealed normal vibration sensory function, but decreased pain and light touch sensory function involving the lateral thigh to lateral and dorsal foot. His right knee and ankle reflexes were slightly (+1) hypoactive, and right plantar flexion was normal. Position sense was normal. There was no muscle atrophy, abnormal muscle tone or bulk, or tremors, tics, or other abnormal movements. His peripheral neuropathy had a moderate effect on chores and recreation, severe effects on exercise and prevented sports. The examiner found that nerve disorders did not affect the function of any joint, and that the Veteran's gait and balance were normal. The examiner diagnosed the Veteran with radiculopathy of the right lower extremity. Although neuralgia was also noted, there was no indication of paralysis or neuritis. The Veteran continued to report numbness, and severe radiating pain from his low back to his leg in the April 2010 Notice of Disagreement. The Veteran experienced numbness when he walked or stood for a short period of time. Non-prescription pain medications did not help the numbness, which occurred constantly, and affected his sleep. In April 2010, the Veteran continued to report right knee pain and swelling, with some numbness in his right leg and toes. The Veteran also reported instability in his right leg, causing it to give away at times. When the Veteran was examined, he exhibited full range of motion, with a normal gait, and no swelling or discoloration was noted. Subsequently, in April 2010, the Veteran reported numbness and knee swelling, and upon examination, he was diagnosed with a right knee contusion. His gait was normal. In his August 2010 Form 9, the Veteran reported that at night, he experienced numbness in his right leg, making it difficult to get out of bed in the morning. He also had difficulty walking long distances, and as a result, remained in bed most of the time. The Veteran also reported that his medical rating from the Department of Corrections was changed, in part, due to his radiculopathy. An August 2011 nursing note from the St. Brides Correctional facility noted the Veteran's complaints of back and leg pain, however his lower extremities were evaluated as normal. Subsequently, in an August 2011 statement, the Veteran's friend reported that he had difficulty standing and walking for long periods of time, and that he could not bend over to tie his shoes. Another friend of the Veteran reported he had difficulty making his bed in the morning, and that he could only walk a short distance before needing to take a break. In a lay statement, the Veteran continued to report having weakness and pain, and that his radiculopathy had increased in severity during the past year. In subsequent September and November 2011 lay statements, the Veteran reported bilateral leg pain and numbness that prevented him from standing for long periods of time or walking long distances. In a February 2012 VA clinical record, the Veteran continued to report back and leg pain. The Veteran was diagnosed with worsening radiculopathy. The examiner noted right leg numbness, and normal and symmetric reflexes. His strength was 5/5, his toes were down-going bilaterally (normal), and his sensation was intact. April 2012 VA records reveal that the strength of the Veteran's right lower extremity was 4/5 with full range of motion, and that he walked with an antalgic gait. The Veteran had been given a cane to assist with movement. During the June 2012 VA examination, the Veteran was diagnosed with radiculopathy of the right lower extremity. He reported right leg pain and weakness, and flare-ups that prevented him from being able to stand or walk for long periods of time or bend over. The Veteran also indicated that he needed his cane to prevent himself from falling down. Muscle strength testing of the lower extremities was normal, with no muscle atrophy. A reflex examination of the right knee was normal, however the right ankle reflex examination showed it was hypoactive. Sensory examinations of the right upper thigh and knee were normal, however sensation was decreased in the right lower leg/ankle and foot. A straight leg raising test of the right leg was positive. The examiner observed mild numbness of the right lower extremity, however there was not constant pain, intermittent pain, or paresthesias and/or dysesthesias due to radiculopathy of the right lower extremity. The examiner found there was mild radiculopathy of the right sciatic nerve. No other neurological abnormalities were observed. The examiner noted that the Veteran walked with a limp on the right side, and used a cane. In an August 2012 statement, the Veteran's spouse reported that his right leg pain limited his activities, and that she observed him rubbing his legs daily to alleviate the pain. The Veteran also reported that his back and leg pain was so severe, that it was difficult for him to walk around, and that he needed the assistance of a cane. Subsequently, in a January 2015 statement, the Veteran indicated that he wanted to request increased compensation for his right and left legs. He reported that his legs were getting weaker, and that he had fallen twice, as a result. In a June 2015 VA examination for the Veteran's back, the examiner noted that the Veteran had degenerative joint disease of the lumbar spine with radiculopathy of the bilateral lower extremities, and that he had a history of pain radiating from the back to the right and left lower legs, with intermittent paresthesias in each foot. The Veteran's muscle strength testing was all normal, and no muscle atrophy was observed. Similarly, the Veteran had all normal deep tendon reflexes. The Veteran's sensory exam also revealed all normal results, and his straight leg raising test results were negative. The Veteran did exhibit mild intermittent pain and mild paresthesias. The examiner determined that the severity of the Veteran's radiculopathy was mild, and that it affected both his right and left legs. After reviewing the evidence of record, the Board finds that the Veteran's right leg radiculopathy more nearly approximates the criteria for moderate incomplete paralysis, thus warranting an evaluation of 20 percent under DC 8520. The Board also finds that "staged" ratings are not warranted by the evidence, and that the Veteran should be awarded an evaluation of 20 percent for the entire period of appeal. A review of the record shows that the Veteran's symptoms of pain, weakness, and numbness, have been persistent throughout the entire period of appeal. As noted above, "moderate" is not defined in the VA Schedule for Rating Disabilities. However, the M21 does instruct adjudicators to find that radiculopathy is moderate if there is motor or reflex impairment such as weakness, or diminished or hyperactive reflexes (with our without sensory impairment) graded as medically moderate. An evaluation that is of moderate severity is also the maximum evaluation that can be assigned for neuralgia characterized by a dull or intermittent pain in the distribution of a nerve. See M21-1, pt. III, subpt. iv. ch.4, § G(4)(c). Throughout the appeal period, the Veteran has credibly reported having pain radiate from his back to his right leg, weakness, impaired coordination, and numbness. In the March 2010 VA examination, the Veteran reported that he had weakness and impaired coordination in his right leg. He had features of decreased pain and light touch sensation as well as hypoactive right knee and ankle reflexes. An April 2012 VA clinic record reflected reduced (4/5) right lower extremity motor strength. Similarly, in the most recent June 2015 VA examination, the Veteran continued to exhibit intermittent pain and paresthesia in his right lower extremity. As such, the Veteran's symptoms of radiculopathy, when considering the lay reports of pain, difficulty with standing or walking without cane assistance, occasional falling episodes and the medical assessments concerning the impact on chores, exercise, recreation and sports, more nearly approximate the criteria for moderate incomplete paralysis for the entire period of appeal. A higher evaluation of 40 percent is unwarranted because the Veteran's symptoms are not moderately severe. The M21 instructs adjudicators to find that a nerve disability is moderately severe if there is motor and reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability. See M21-1, pt. III, subpt. iv. ch.4, § G(4)(c). Muscle atrophy may also be present. However, the manual also provides that the provision for a moderate level of evaluation does not mean that if there is any impairment that is non-sensory such as reflex abnormality, weakness, or muscle atrophy, the disability must be evaluated as greater than moderate. See M21-1, pt. III, subpt. iv. ch.4, § G(4)(b). The Veteran and his witnesses subjectively report right lower extremity weakness and incoordination which affects the Veteran's ability to ambulate. An examination in April 2012 reflected slight (4/5) motor weakness. Otherwise, muscle strength has been evaluated as normal. See VA examination reports dated March 2010, June 2012 and June 2015; clinic records dated April 2010, August 2011 and February 2012. Thus, the Veteran's motor weakness has been objectively measured as no more than slight. At times, the Veteran has demonstrated (1+) hypoactive but present reflex abnormality. See VA examinations dated March 2010 and June 2012. However, his reflexes were otherwise evaluated as normal. See August 2011 clinic and VA examination report dated June 2015. There is no objective evidence of loss of position sense. The Veteran has also demonstrated some sensory disturbance not involving the entire lower extremity described as mild by an examiner. See VA examination report dated June 2012. Otherwise, the objective evaluations found normal sensation. See VA examination reports dated March 2010 and June 2015; clinic record dated February 2012. Additionally, the Veteran has not objectively demonstrated other potential features of sciatic nerve paralysis such as muscle atrophy and trophic changes. Thus, the Veteran has right lower extremity symptoms which moderately effect activities such as chores and recreation, severely effect exercise and prevent sports participation. His motor strength has been objectively evaluated as no more than mild in degree when present, and his reflex abnormalities are not always present on examination. In totality, the Veteran has not exhibited for any time during the appeal period motor or reflex impairment at a grade reflecting a high level of limitation or disability. The Veteran's sensory deficits, when detectable, have not involved a large area. There has been no objective evidence of loss of position sense. When considering the relative in motor function, trophic changes and sensory disturbances, as required by 38 C.F.R. § 4.120, and in light of the M21-1 guidance, the Board finds that the Veteran's right lower extremity neuropathy has not met, or more nearly approximated, moderately severe incomplete paralysis for any time during the appeal period. In so finding, the Board has found the reports from the Veteran and his witnesses concerning his right lower extremity symptoms and functional limitations to be credible and consistent with the evidentiary record. His symptoms of pain, limited walking and standing with need for use of a cane, and occasional falling episodes have supplemented the medical findings and have been relied upon in finding moderate incomplete paralysis of the sciatic nerve despite the motor and reflex abnormalities which have not always been measurable on examination and have been medically described as mild in degree. To the extent the witnesses opine that the right lower extremity radiculopathy is more severe in degree, the Board places greater probative weight on the clinic findings of the trained professionals who have greater expertise in measuring motor, sensory and reflex abnormality. There is no further doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted. The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and no referral is required. In this case, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected right lower extremity radiculopathy. The Veteran experiences weakness, pain, numbness, and difficulty with walking and standing. The criteria for evaluating peripheral nerve injuries in terms of moderate and moderately severe, even when considering the M21-1 definitional guidance, allows for consideration of all relevant factors in assigning a disability rating. There are no features of the Veteran's right lower extremity radiculopathy disability which is not contemplated in the schedular criteria, or in the Board's decision on appeal. Thus, the Board finds no additional aspects of disability not contemplated in the Veteran's assigned schedular ratings. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. The Veteran has not expressly raised this issue, and the record does not reasonably raise this issue. The Veteran is service-connected for thoracolumbar spine disability evaluated as 40 percent disabling for the orthopedic manifestations with separate disability ratings for his neurologic impairment of right and left lower extremity radiculopathy (20 percent and 10 percent, respectively). He also holds a 30 percent rating for chronic obstructive pulmonary disease and a 10 percent rating for sinusitis with allergic rhinitis. The Board finds no aspects of these disabilities which have not been considered in the assigned schedular ratings. Therefore, the Board has determined that referral of this matter for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. TDIU The Court found that the Board had not provided an adequate statement of reasons and bases for its finding that the Veteran was not entitled to TDIU prior to June 6, 2012. Specifically, the Court noted that the Board had not attempted to relate the Veteran's physical capabilities to his occupational or educational history. During the March 2010 VA examination, the Veteran reported having been unemployed for 10 to 20 years due to his incarceration and mental health conditions. He reported working in a "road gang" for 12 hours per week at the correctional facility. His leg pain and numbness caused difficulties in his work, and caused him to miss several days of work. The examiner found that his radiculopathy moderately affected chores and recreation, and severely affected his exercise. The examiner also found that Veteran's lumbar spine disability prevented him from working in any strenuous occupation that involved lifting, stooping, or bending. The Veteran would also have difficulty with any employment that required prolonged walking or standing, and if prolonged sitting was required, he would need to be able to stand frequently to change position. The examiner concluded that it would be difficult for the Veteran to sustain employment with his back condition, and that would probably worsen as he aged. In his August 2010 Form 9, the Veteran stated that it was difficult for him to walk for long distances or lift more than 50 pounds after he started working in the correctional facility because his right leg would give out. At night, his right leg would become numb, causing difficulties with getting out of bed in the morning. Due to his inability to walk or bend, the Veteran stayed in bed most of the time. The Veteran also indicated that his medical rating assigned by the Department of Corrections had changed because of his radiculopathy. In his February 2011 application for TDIU, the Veteran indicated that his service-connected lumbar spine and right lower extremity disabilities prevented him from obtaining or maintaining substantially gainful employment. The Veteran also indicated that he had to leave his last job because of his disabilities, and that he hadn't been able to obtain employment after that due to his incarceration. In the section for schooling and other training, the Veteran indicated that he had a high school education and that he had not completed any additional education or training before he became too disabled to work. In a separate statement, the Veteran indicated that his right leg radiculopathy had worsened since the last VA examination, and that he experienced numbness in his right leg, which made it difficult to walk. In a subsequent August 2011 application for TDIU, the Veteran reported he had last worked in 2003, providing temporary services. In this application, the Veteran indicated that he had tried to obtain employment in lawn maintenance, in 2004, and that he had electrical technician training from 1975 to 1977. Although he had attempted to work, the Veteran reported that his back and leg pain prevented him from standing or walking for a long time. During an April 2012 VA kinesiotherapy consult, the examiner noted that the Veteran could occasionally sit, balance, and reach in any direction with arms and hands, however he could rarely climb stairs, stoop, or stand. He was completely unable to kneel or crawl, but could lift objects weighing 10 to 25 pounds. The examiner noted that the Veteran's condition was possibly deteriorating, and that he was a candidate for vocational rehabilitation, however he also noted manual labor would likely aggravate his physical condition. In a subsequent April 2012 VA examination for the Veteran's respiratory condition, the examiner noted that the Veteran's respiratory condition did not impact his ability to work. However, in a June 2012 VA examination, the examiner found that the Veteran's respiratory condition impacted his ability to work since the Veteran would be unable to work or complete activities that caused moderate to severe shortness of breath. The examiner limited the Veteran to light daily activities or work. The June 2012 VA examination also found that the Veteran's back condition affected his ability to work because the Veteran could not work in jobs involving the use of his lower extremity due to his high fall risk. In the June 2015 VA examination for the Veteran's back, the examiner again found that his back condition impacted his ability to work due to difficulties with bending, lifting, and stooping. After reviewing the evidence, the Board finds that the Veteran is entitled to TDIU prior to June 6, 2012. The evidence of record shows that the Veteran's employment was impacted by his service-connected disabilities as early as the March 2010 VA examination, when he reported that he had missed work due to his leg pain and numbness. Although the Veteran was incarcerated at the time, his right leg radiculopathy impacted the "work" he performed while incarcerated, and caused him to miss days due to pain and numbness. Notably, the Veteran was involved in "road gang" "work" which would unlikely meet the definition of performing "substantially gainful employment." During the March 2010 examination, the examiner did find that the Veteran's chronic bronchitis and shortness of breath would prevent strenuous employment, but not sedentary employment. However, in that same examination, the examiner found that the Veteran's lumbar spine disability would prevent any occupation that required prolonged walking or standing, or any lifting, stooping, or bending. The evidence of record shows that the Veteran's employment history involves strenuous, service-oriented jobs, and that he has not received any additional education or training since his last period of employment. Overall, the Veteran is not shown to possess any education or training to perform substantially gainful employment in a purely sedentary occupation consistent with his limited educational and vocational background. Even if the Veteran were to obtain sedentary employment, the March 2010 VA examination noted that if prolonged sitting was required, the Veteran would need to be able to stand frequently to change position. Given the evidence of the Veteran's difficulties with standing and walking, the Veteran would likely have had difficulty maintaining even sedentary employment - which is limited by his very limited educational and vocational background. Thus, the Board finds that the Veteran has met the criteria for entitlement to TDIU since the inception of the appeal period which is the date of his claim for an increased rating on appeal - May 28, 2009. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (the issue of TDIU is a component of an increased rating claim and not a separate claim). In this respect, the Veteran is not shown to have performed substantially gainful employment for any time during the appeal period, and not shown to possess the ability to perform substantially gainful employment given his service-connected limitations in light of his limited educational and vocational background. ORDER Entitlement to a rating of 20 percent, but not greater, for the entire period of appeal, for radiculopathy of the right lower extremity is granted, subject to the laws controlling payment of VA benefits. A rating in excess of 20 percent is denied. Entitlement to TDIU is granted from May 28, 2009, subject to the laws controlling payment of VA benefits. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs