Citation Nr: 1803086 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 15-15 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for lumbar and thoracic spine disability. 2. Entitlement to an evaluation in excess of 20 percent for left lower extremity sensory polyneuropathy disability. 3. Entitlement to an evaluation in excess of 20 percent for right lower extremity sensory polyneuropathy disability. 4. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from January 1958 to February 1966. These matters come on appeal before the Board of Veterans' Appeals from a September 2013 rating decision by the Department of Veterans Affairs, Regional Office, located in St. Petersburg, Florida (RO), which denied the benefits sought on appeal. In February 2016, the Veteran testified before the undersigned during a Board hearing held via videoconference capabilities from the RO. A copy of the hearing transcript has been associated with the claims folder. The issues on appeal were previously before the Board in March 2016 and were remanded for further development and in order to afford the Veteran medical examinations. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to TDIU addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the rating period on appeal, the service-connected lumbar and thoracic spine disability has been manifested by pain and weakness between 45 and 55 degrees. 2. Throughout the rating period on appeal, the service-connected lumbar and thoracic spine disability has not been manifested by ankylosis, limitation of forward flexion to 30 degrees or less, or incapacitating episodes requiring physician ordered bed rest. 3. The Veteran's right lower extremity sensory polyneuropathy resulted in a disability comparable to moderate incomplete paralysis, but not moderately severe, of the sciatic nerve. 4. The Veteran's left lower extremity sensory polyneuropathy resulted in a disability comparable to moderate incomplete paralysis, but not moderately severe, of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 20 percent for the lumbar and thoracic spine disability have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239 (2017). 2. The criteria for a rating in excess of 20 percent for sensory polyneuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for a rating in excess of 20 percent for sensory polyneuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Under 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103 (a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Once entitlement to compensation is granted, the claim is substantiated and additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159 (b)(3)(i) (no duty to provide notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The Federal Circuit has interpreted these decisions as meaning that VCAA notice is not required in the case of an appeal of an effective date assigned when an increased rating has been granted. See Sanford v. Peake, 263 F.App'x 54, 55 (Fed. Cir. 2008). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b), and no further notice is needed under applicable VA laws and regulations. With respect to the Veteran's claim for entitlement to TDIU, the RO provided pre-adjudication VCAA notice by letters dated in June 2009 and June 2013. The Veteran was notified of the evidence needed to substantiate the claim for TDIU as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service VA treatment records, and lay statements have been associated with the record. The AOJ also assisted the Veteran by providing VA examinations in September 2012, June 2014 and July 2017. The VA examiners reviewed the Veteran's claims, his electronic records, and conducted in-person interviews. These examinations are adequate because the examiners discussed the Veteran's medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Having taken these steps, the Board finds that VA has complied with its prior remand orders, see Stegall v. West, 11 Vet. App. 268, 271 (1998), and has otherwise satisfied its duties to notify and assist the Veteran in this case. Increased Rating Claims Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). Accordingly, 38 C.F.R. § 4.14 (2016) prohibits "pyramiding" - or the assignment of multiple disability ratings for more than one service-connected disability when the symptoms of each service-connected disability duplicate or overlap with the symptoms of another service-connected disability. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the weight of the evidence demonstrates that the lumbar and thoracic spine disability did not undergo an increase within the one year period before the claim was filed with VA in May 2011. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Lumbar and Thoracic Spine Disability The Veteran is in receipt of a 20 percent rating for lumbar and thoracic spondylosis under Diagnostic Code 5239. 38 C.F.R. § 4.71a. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. A 30 percent disability rating is provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lateral 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 lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under the IVDS Rating Formula (Diagnostic Code 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The Veteran generally contends that an increased rating in excess of 20 percent for the service-connected lumbar and thoracic spine disability is warranted. In September 2012 the Veteran underwent a VA Back (Thoracolumbar Spine) Examination. The Veteran was diagnosed with degeneration of lumbar or lumbosacral intervertebral disc. During the examination he reported that flare ups impact his function once a month with extremely painful low back pain. It impacts his ability to stand and is exacerbated by overuse. Initial range of motion testing showed forward flexion to 55 degrees (normal endpoint is 90 degrees), with painful motion beginning at 55 degrees; extension to 10 degrees (normal endpoint is 30 degrees), with painful motion beginning at 10 degrees; right lateral flexion to 30 degrees (normal endpoint is 30 degrees), with no objective evidence of painful motion; left lateral flexion to 30 degrees (normal endpoint is 30 degrees), with no objective evidence of painful motion; right lateral rotation to 10 degrees (normal endpoint is 30 degrees), with painful motion beginning at 10 degrees; and left lateral rotation to 10 degrees (normal endpoint is 30) with painful motion beginning at 10 degrees. The Veteran was able to perform repetitive use testing with forward flexion to 70 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 or greater degrees, right lateral rotation to 10 degrees and left lateral rotation to 10 degrees. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. In addition, there was no functional loss and/or functional impairment of the thoracolumbar spine. All muscle strength tests were normal with the exception of the right knee extension, which was rated as having active movement against some resistance. All reflex exams were also normal. Sensory exams were also normal with the exception of bilateral lower leg/ankle, which showed decreased light touch sensation. The straight leg raising tests were negative and no radiculopathy or IVDS was found. However, the examiner did indicate that the Veteran used a cane. The examiner also noted that the Veteran had degenerative central canal stenosis at the L3-4 through the L5-S1 levels as shown in an August 2012 MRI. In comparison with a July 2006 MRI the examiner determined that the degree of degenerative disc disease at the L4-5 level had increase only minimally and L5-S1 level had increased. The functional impact was described at impacting the Veteran's ability to lift or bend. It caused a stabbing pain. In his April 2015 VA Form 9 the Veteran described his back pain as constant, causing nausea and stomach aches. A July 2015 treatment recorded noted that the Veteran did not require any assistance bathing, dressing, toileting, feeding or transferring in and out of beds and chairs. During his February 2016 Board hearing the Veteran testified that he is only able to walk approximately a quarter mile. He also stated that pain impacts his ability to sleep and pain increases with sitting. However, the Veteran also testified that he has not had any prescribed periods of bed rest. The Veteran was afforded another VA Back (Thoracolumbar Spine) Examination in July 2017. His degenerative disc disease diagnosis was confirmed. He reported flare-ups with pain in his low back. The Veteran also reported using a cane and stated he was unable to work due to his low back pain. Initial range of motion testing showed forward flexion to 45 degrees (normal endpoint is 90); extension to 20 degrees (normal endpoint is 30 degrees); right lateral flexion to 20 degrees (normal endpoint is 30 degrees); left lateral flexion to 20 degrees (normal endpoint is 30 degrees); right lateral rotation to 30 degrees (normal endpoint is 30 degrees); and left lateral rotation to 30 degrees (normal endpoint is 30 degrees). The examiner reported that there was pain on forward flexion, extension, right lateral flexion and left lateral flexion, but it did not result in/cause functional loss. There was also evidence of pain on weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions, but it did not result in additional loss of function or range of motion. It was reported that pain and weakness also significantly limited functional ability with repeated use over time and during flare ups. In terms of range of motion, forward flexion to 45 degrees, normal endpoint is 90 degrees, extension to 20 degrees, normal endpoint is 30 degrees, right lateral flexion to 20 degrees, normal endpoint is 30 degrees, left lateral flexion to 20 degrees, normal endpoint is 30 degrees, right lateral rotation to 30 degrees, normal endpoint is 30 degrees, left lateral rotation to 30 degrees, normal endpoint is 30 degrees. The Veteran also experienced spasms to the lower back, but they did not result in abnormal gait or spinal contour. Additional factors contributing to the Veteran's disability included weakened movements due to fatigue and pain, resulting in frequent rest periods. Muscle strength testing was normal, with the exception of the bilateral big toe extension, which showed active movement against gravity. A reflex exam was normal. Sensory exam revealed decreased light touch sensation in the bilateral big toes. The Veteran was unable to perform straight leg raising tests. Symptoms of radiculopathy were described as moderate intermittent pain (usually dull, moderate paresthesias and/or dysesthesias and moderate numbness in the bilateral lower extremities. Involvement of L4 - S3 nerve roots (sciatic nerve) was indicated bilaterally. There was no ankylosis or IVDS found. The functional impact of the Veteran's spine disability was described as a decrease in activities of daily living due to his inability to stand or sit for greater than 10 minutes at a time. Lastly, the examiner noted there was no objective evidence of pain on non-weight bearing, passive range of motion testing showed the same results as active range of motion and there was no objective evidence of pain on passive range of motion testing. Based on the foregoing, the Board finds that an increased rating in excess of 20 percent for the service-connected lumbar and thoracic spine disability is not warranted under Diagnostic Code 5239. The evidence of record does not demonstrate that the Veteran has any form of ankylosis of the spine, nor was the Veteran found to have IVDS or incapacitating episodes resulting therefrom. When considering the September 2012 and July 2017 VA examination, at worst, the Veteran showed forward flexion to approximately 45 degrees, the Veteran does not meet the criteria for an increased rating in excess of 20 percent, which requires forward flexion more closely approximating less than 30 degrees. For these reasons, the Board finds that the preponderance of the evidence is against the appeal for an increased disability rating in excess of 20 percent for the lumbar and thoracic spine disability for any period. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5239. Bilateral Lower Extremity Sensory Polyneuropathy The rating schedule provides guidance for rating neurologic disabilities. With regard to rating neurologic disabilities, cranial or peripheral 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. The maximum rating that can be assigned for neuritis not characterized by organic changes noted in 38 C.F.R. § 4.123, will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Diagnostic Codes 8520, 8620 and 8720 rate paralysis, neuritis and neuralgia, respectively, associated with the sciatic nerve. They authorize a 10 percent rating for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is authorized for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The Board may rate an unlisted disorder under the rating criteria for a closely related disease or injury in which the functions affected, the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. During a September 2012 Peripheral Nerves Examination the Veteran was diagnosed with sciatica. The Veteran described experiencing left leg weakness and increasing right leg weakness with trouble climbing stairs, especially when carrying greater than five pounds. He experienced falls, three times in the prior month. The Veteran had symptoms attributable to peripheral nerve conditions, including mild right lower extremity paresthesias and/or dysesthesias and mild numbness in the right and left lower extremities. Muscle strength testing showed normal strength with the exception of the right knee extension which showed active movement against some resistance. No muscle atrophy was found. Reflexes were normal. A sensory exam showed normal sensation for light touch with the exception of the right and left lower leg/ankle (L4/L5/S1) which showed decreased sensation. There were no trophic changes. The Veteran's gait was abnormal due to right lower leg weakness. He also used a cane to compensate. It was noted that the only nerve affected was the sciatic nerve, which resulted in bilateral incomplete paralysis. However, the examiner did not indicate the severity of the incomplete paralysis. The examiner found that the Veteran's bilateral polyneuropathy impacted his ability to work due to his inability to carry objects. The Veteran underwent an additional Peripheral Nerves examination in June 2014 and was diagnosed with lumbar radiculopathy. His symptoms attributable to his peripheral nerve condition included moderate intermittent pain (usually dull) mild paresthesias and/or dysesthesias and mild numbness in the right lower extremity and mild intermittent pain (usually dull) and mild numbness in the left lower extremity. Other symptoms included low blood pressure, pain radiating down the right lower extremity to the right foot three times per week for a short duration. Muscle strength testing revealed normal results. Reflex exams showed hypoactive deep tendon reflexes in the right knee and bilateral ankles. Sensory exams showed normal results for light touch sensation with the exception of the bilateral foot/toes, which showed decreased light touch sensation. There were no trophic changes found and the Veteran's gait was normal. No assistive devices were noted. Straight leg raising elicited pain on the right side. It was found that the Veteran experienced mild incomplete paralysis of the right and left sciatic nerves. The examiner found the Veteran's peripheral nerve condition and/or peripheral neuropathy impacted the Veteran's ability to work because the Veteran told him that he stopped working in 2002 due to low back pain. In an April 2014 Notice of Disagreement the Veteran wrote that his neuropathy condition caused loss of feeling below his ankle and the pain seems to be more in his left foot than right foot. During his February 2016 Board hearing the Veteran testified that he was unable to feel anything below his mid-calf on both legs. The Veteran stated that the numbness meant he was unable to drive, required him to install handrails in his shower and caused him to fall three times in the prior year. Most recently, the Veteran underwent a VA examination in July 2017. Factors contributing to the Veteran's disability included weakened movements due to fatigue and pain, resulting in frequent rest periods. Muscle strength testing was normal, with the exception of the bilateral big toe extension, which showed active movement against gravity. A reflex exam was normal. Sensory exam revealed decreased light touch sensation in the bilateral foot/ toes (L5). The Veteran was unable to perform straight leg raising tests. Symptoms of radiculopathy were described as moderate intermittent pain (usually dull, moderate paresthesias and/or dysesthesias and moderate numbness in the bilateral lower extremities. Involvement of L4 - S3 nerve roots (sciatic nerve) was indicated bilaterally. There was no ankylosis or IVDS found. The functional impact of the Veteran's disability was described as a decrease in activities of daily living due to his inability to stand or sit for greater than 10 minutes at a time. In view of the foregoing, the Board finds that a disability rating of in excess of 20 percent disabling for the Veteran's sensory polyneuropathy of his right and left lower extremities, is not warranted throughout the course of the appeal because the record evidence shows that sensory polyneuropathy of the right and left lower extremities has been manifested by moderate incomplete paralysis. Specifically, moderate intermittent pain, moderate paresthesias and moderate numbness, normal strength in his knee extension, knee flexion, ankle plantar flexion and ankle dorsiflexion, normal reflexes of both knees and ankles, is accounted for in his currently assigned 20 percent ratings for moderate symptomatology. Crucially, the Veteran himself has only reported mild or moderate symptoms in relation to his bilateral peripheral neuropathy. He has evidenced largely normal strength testing on physical examination with no evidence of atrophy or trophic changes. For these reasons, disability ratings in excess of 20 percent for right and left lower extremity sensory polyneuropathy are denied. ORDER Entitlement to an increased rating for the lumbar and thoracic spine disability, currently evaluated as 20 percent disabling, is denied. Entitlement to an increased rating for right lower extremity sensory polyneuropathy, currently evaluated as 20 percent disabling, is denied. Entitlement to an increased rating for left lower extremity sensory polyneuropathy, currently evaluated as 20 percent disabling, is denied. REMAND Although the Board sincerely regrets the additional delay, further development is necessary prior to the adjudication of the Veteran's claim of entitlement to TDIU, due to service-connected disability. The Veteran is currently in receipt of disability ratings of 20 percent for lumbar and thoracic spine disability, 20 percent for right lower extremity sensory polyneuropathy disability and 20 percent for left lower extremity sensory polyneuropathy disability. A combined 50 percent disability rating is in effect. The Veteran, accordingly, does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). However, 38 C.F.R. § 4.16 (b) provides that when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16 (a), such case may be considered for extra-schedular consideration in accordance with 38 C.F.R. § 3.321. As the Board itself cannot assign an extra-schedular rating, including on the basis of TDIU, in the first instance; it must first specifically determine whether to refer a case to the Director of Compensation and Pension Service for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. 38 C.F.R. § 4.16 (b); See also Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. The Veteran has argued that he can no longer work due to the pain in his back and sensory polyneuropathy disabilities. On his application for increased compensation based on unemployability the Veteran noted that he last worked at hardware stores and with electronics in 2009. The July 2017 VA examiner found that the Veteran was unable to sit or stand for a period longer than 10 minutes. Based upon the foregoing, the Board is required to remand the claim so that it can be referred to the Director of VA's Compensation and Pension Service for adjudication under 38 C.F.R. § 4.16 (b). Id. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VA Form 21-8940 and request he provide details regarding his employment history. An appropriate period of time should be allowed for response. 2. Then refer the Veteran's TDIU claim to the Director of Compensation and Pension Service for a determination as to whether the Veteran is entitled to TDIU on an extra-schedular basis in accordance with the provisions of 38 C.F.R. § 4.16 (b). A full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue must be provided. 3. After completing the above, and any development deemed necessary, readjudicate the Veteran's claim for a schedular and extra-schedular TDIU based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, provide him and his representative with a supplemental statement of the case. Allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs