Citation Nr: 1804681 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 12-30 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for the Veteran's lumbar spine disability. 2. Entitlement to an initial rating in excess of 10 percent for femoral radiculopathy of the left lower extremity. 3. Entitlement to an initial rating in excess of 10 percent for femoral radiculopathy of the right lower extremity. 4. Entitlement to an initial rating in excess of 10 percent for sciatic radiculopathy of the left lower extremity. 5. Entitlement to an initial rating in excess of 10 percent for sciatic radiculopathy of the right lower extremity. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) from September 2, 2014. 7. Entitlement to a TDIU from November 15, 2010 to September 2, 2014. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1982 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously remanded by the Board in May 2013 and April 2017 and have returned for consideration. The issue of entitlement to TDIU for the period prior to September 2, 2014 is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's lumbar spine disability is manifested by pain and functional impairment with forward flexion to at worst, greater than 30 degrees; there is no ankylosis of the entire thoracolumbar spine or physician prescribed bedrest. 2. The Veteran's radiculopathy of the left lower extremity more nearly approximates moderate incomplete paralysis of the femoral nerve, but no more. 3. The Veteran's radiculopathy of the right lower extremity more nearly approximates moderate incomplete paralysis of the femoral nerve, but no more. 4. The Veteran's radiculopathy of the left lower extremity more nearly approximates no more than mild incomplete paralysis of the sciatic nerve. 5. The Veteran's radiculopathy of the right lower extremity more nearly approximates no more than mild incomplete paralysis of the sciatic nerve. 6. Since September 2, 2014, with full consideration of the Veteran's educational and occupational background, the Veteran's service-connected disabilities combine to render him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the Veteran's lumbar spine disability have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237-5242 (2017). 2. The criteria for an initial 20 percent rating, but no higher, for femoral radiculopathy of the left lower extremity have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2017). 3. The criteria for an initial 20 percent rating, but no higher, for femoral radiculopathy of the right lower extremity have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2017). 4. The criteria for an initial rating in excess of 10 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 5. The criteria for an initial rating in excess of 10 percent for sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 6. Since September 2, 2014, the criteria for TDIU are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Lumbar spine disability The current appeal arises from an August 2011 RO rating decision which increased the Veteran's lumbar spine disability to 20 percent disabling, effective November 15, 2010, the date of his claim for increase. The Veteran asserts entitlement to a higher rating. Historically, service connection for the Veteran's low back condition was granted in a December 1996 RO rating decision, evaluated as 10 percent disabling. During the course of the appeal, the RO granted separate ratings for lower extremity radiculopathies of the sciatic and femoral nerves in July 2014 and August 2016 RO rating decisions, respectively. As neurological manifestations of the Veteran's low back condition, they are considered part and parcel with his claim for increase on appeal and will be addressed in the decision below. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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. A 40 percent disability rating is assigned for 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 entire spine. Diagnostic Code (DC) 5235-5242. Normal forward flexion of the thoracolumbar spine, including the lumbar spine, is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. DC 5243, Note (2). Under the Formula for Rating IVDS based on Incapacitating Episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. VA records throughout the appeal period, beginning in November 2009, reflect ongoing complaints of low back symptoms, including chronic and radiating pain, stiffness, muscle spasm and loss of range of motion. The severity of pain levels reported ranged from a level 3 to 10 out of 10. The Veteran's forward flexion ranged from normal to, at worst, midrange or half (approximately 45 degrees, considering normal range of motion for VA purposes). On evaluation, tenderness to palpation of the spine was often shown. There were no periods of hospitalizations or doctor prescribed bedrest shown. Treatment included over the counter medications, pain management, chiropractic care, physical therapy, acupuncture and injections. Functional limitations shown in VA records and through the Veteran's statements were with lifting, stairs, twisting, climbing, bending, rising from a seated position, rising from bed in the morning, and with prolonged sitting, standing or walking. He was unable to enjoy sports or exercise. He suffered from sleep trouble and missed days or work as a day laborer when he could not get out of bed. VA records reflect an ongoing diagnosis of bilateral lower extremity radiculopathy. He consistently reported symptoms of intermittent radiating pain into his lower extremities, described as shooting, throbbing and occasionally sharp. Likewise, he reported no more than occasional, transient or intermittent symptoms of numbness, tingling or weakness associated with the radiation of pain. Records suggest that radiating pain occurred at times of increased low back pain or flares. For example, in November 2010, the Veteran reported aggravation of his low back pain, with spasm radiating into his legs. At this time, he was walking with a slight limp and favoring the right side. In June 2014, he reported occasional and transient numbness. In November 2011, May 2012, July 2013 and December 2013 records, he reported intermittent left leg weakness with more severe pain. Muscle strength testing was predominantly normal, with an instance of mild weakness found in the right lower extremity in December 2013, though it resolved with repeat testing. There were positive and negative results for the straight leg and reflex tests of the bilateral lower extremities. Sensory testing was largely normal. He consistently denied any bowel and bladder incontinence. See CAPRI records dated October 30, 2017. On VA spine examination in December 2010, the Veteran reported low back symptoms of sharp pain, burning radiating pain into his legs, fatigue, decreased motion, dullness, stiffness, weakness and spasm. Once or twice per month, he could not get out of bed. Severe flare-ups occurred every 2-3 weeks and lasted 3-7 days. Flares caused additional limitation with bending and were precipitated by sleeping wrong or prolonged sitting. He used a cane and brace. He was able to walk more than 1/4 mile but less than 1 mile. There was no urinary or fecal incontinence but there were symptoms of erectile dysfunction, urinary frequency, nocturia, numbness, weakness, unsteadiness. The examiner indicated that the etiology of these symptoms were not unrelated to claimed disability, but provided no further explanation or rationale. On physical examination, the Veteran's gait was normal. His forward flexion measured to 60 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, and right lateral flexion to 15 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 25 degrees. Active motion evidenced pain. There was no additional limitation in motion on repetitive use testing, despite pain. The spinal contour reflected lumbar lordosis. There was no ankylosis. There was guarding, not severe enough to result in an abnormal gait or spinal contour. Objectively, there was no spasm or weakness. There was pain to palpation at the midline from L4-S1 and the bilateral sacroiliac joint. The lower extremities had a normal motor examination and muscle tone with no muscle atrophy. X-rays from November 2010 documented osteoarthritis changes primarily involving the intervertebral disc space. Reflex testing revealed hyperactive reflexes, without clonus at (3+). The sensory examination was normal, with no nerve affected. The detailed motor examination was normal, with normal muscle tone and no muscle atrophy. There were functional limitations with lifting, climbing ladders and bending. The effect on occupational activities was a decreased strength in his lower extremities and pain. Daily activities were impacted. For example, his wife assisted him in putting on shoes and walking. The Veteran worked part time in construction with 8 weeks lost during the prior year due to his low back and shoulder injury. There were no incapacitating episodes of spine disease. On VA examination in May 2014, the Veteran reported progressive pain and stiffness. He suffered flare ups with limitations in prolonged walking/standing, bending, twisting, and lifting/carrying. He used a brace and cane. He demonstrated forward flexion measured to 75 degrees, extension to 20 degrees, bilateral lateral flexion to 25 degrees, and bilateral lateral rotation to 25 degrees. There was objective evidence of pain on motion with no additional limitation of motion on repetitive use testing. There was no ankylosis. Functional loss was less movement than usual and pain on movement. There was tenderness or pain on palpation to the paraspinous muscles. There was no muscle spasm or guarding. The Veteran had IVDS with no incapacitating episodes over the prior 12 months. May 2016 imaging found spondylolysis without thecal sac compression and a mild progression of degenerative change since 2012, which corresponded with his worsening range of motion testing. The Veteran had bilateral lower extremity radiculopathy of a mild severity which impacted the sciatic nerve. Mild symptoms of intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness were indicated. There were no symptoms of constant pain. Muscle strength was normal (5/5) and there was no muscle atrophy. Reflexes were hypoactive (1+) bilaterally. The sensory examination was normal. There was a positive straight leg test. There were no other neurologic abnormalities or pertinent findings. The examiner opined the condition would prohibit work duties with heavy labor or rigorous physical exertion but not sedentary activities, such as administrative or clerical. The Veteran was provided a VA examination in July 2016 with a May 2017 addendum. The Veteran reported low back pain with radiation into his bilateral legs after bending or prolonged walking for the prior year. Pain was worse in the morning and was exacerbated by bending or twisting. He conducted activities of daily living and performed stretches at home. Flare-ups occurred about 4 times per month where he could not get out of bed for the day. He described functional impairment as limitations in bending, twisting, prolonged, using stairs, walking and sitting. The use of a cane was for his low back pain. The examiner opined that the Veteran was not able to work due to his limitations for bending, twisting, carrying, lifting, standing and walking. He worked in construction until 2011. On examination, the Veteran's forward flexion was measured to 40 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 25 degrees. Objective evidence of pain caused functional loss. There was no change in range of motion upon repetitive use testing. There was no evidence of pain with weight bearing. There was no ankylosis of the spine. There was localized tenderness or pain to palpation of the lower lumbar spinal process. There was muscle spasm and localized tenderness that resulted in an abnormal gait or spinal contour, detailed as bending forward and an antalgic gait. There was no guarding. Additional contributing disability factors were less movement than normal due to ankylosis, adhesions, etc., instability of station, disturbance of locomotion, and interference with sitting and standing. Again, IVDS was noted with no doctor prescribed bedrest over the prior 12 months. The Veteran had radiculopathy involving the femoral nerve in the lower extremities of a moderate severity. Moderate symptoms of intermittent pain (usually dull) and numbness were indicated. There were no symptoms of paresthesias, dysesthesias or constant pain. Reflex (2+) and muscle strength (5/5) testing was normal, with no muscle atrophy. Sensory testing was decreased in the upper anterior thigh and otherwise normal. The straight leg test was positive. On VA peripheral nerve examination in March 2017, the Veteran stated that on most days, the low back pain extended to his legs down to his feet. On examination of the bilateral lower extremities, muscle, sensory and reflex testing were normal. The examiner highlighted that there was no motor weakness or objective sensory deficits. Moderate symptoms of intermittent pain (usually dull) and mild symptoms of paresthesias and/or dysethesias were indicated. Symptoms did not include constant pain or numbness. All nerves were identified as normal, including the sciatic and femoral. The examiner remarked that the Veteran's clinical presentation was consistent with lower extremity radiculopathy, moderate in the left and mild in the right, based on his medical history. He had complaints of a throbbing pain and paresthesias intermittently, more severe on the left than on the right. The examiner detailed that the Veteran's gait was abnormal due to his right knee, with no evidence of motor weakness on ambulation. His gait pattern was otherwise good with the use of a straight cane and a right knee brace. The Veteran was able to briefly heel and toe walk by holding onto a table, limited by complaints of back and lower extremity joint pain, but without evidence of motor weakness. The condition did not impact his ability to work. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his lumbar spine. The Veteran's forward flexion has consistently exceeded 30 degrees, as shown in all three VA spine examinations from December 2010, May 2014 and July 2016 and throughout VA records. Likewise, ankylosis of the entire thoracolumbar spine has not been shown. The Board notes the July 2016 VA examiner's remark that a contributing factor of disability was less movement than normal due to ankylosis; however, even accepting that there is some degree of ankylosis resulting in limitation of motion, this statement fails to establish ankylosis of the entire spine. Significantly, all three VA examiners specifically indicated that there was no ankylosis of the spine. Thus, a rating in excess of 20 percent is not warranted. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluation for the period considered. The lay and medical evidence demonstrates that the currently assigned evaluation of 20 percent is appropriate for the Veteran's lumbar spine. The Board finds a higher rating is not warranted for his lumbar spine based on incapacitating episodes. Despite the Veteran's report that he could not get out of bed during flares, the evidence of record does not show any actual doctor prescribed bed rest due to his lumbar spine, a fundamental requirement for a rating under this criteria. Associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under an appropriate DC. 68 Fed. Reg. 51,443, Note (1) (Aug. 27, 2003). Initially, the Board observes that the Veteran reported urinary frequency, nocturia and erectile dysfunction in the December 2010 VA examination, with symptoms deemed not etiologically "unrelated" to his low back condition. However, the examiner offered no further explanation or rationale. Notably, subsequent VA spine examiners from May 2014 and July 2016 clearly found that the Veteran did not have any associated neurological abnormalities, other than his radiculopathy. There is no bowel impairment shown. Thus, the Board finds that a separate rating is not warranted for any additional neurological impairment, to include bladder or bowel impairment. The Veteran's femoral radiculopathies of the bilateral lower extremities are each evaluated as 10 percent disabling for the left and 10 percent disabling for the right, under DC 8526 (effective June 16, 2016). His sciatic radiculopathies of the bilateral lower extremities are each evaluated as 10 percent disabling for the left and 10 percent disabling for the right, under DC 8520 (effective November 15, 2010), respectively. 38 C.F.R. § 4.124a. Under DC 8526, in pertinent part, mild incomplete paralysis of the femoral nerve is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; severe incomplete paralysis is rated 30 percent disabling; and complete paralysis is rated 40 percent disabling. Under DC 8520, in pertinent part, mild incomplete paralysis of the sciatic nerve is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Resolving any reasonable doubt in favor of the Veteran, since June 16, 2016, the Board finds that an initial 20 percent rating for femoral radiculopathy of left lower extremity and a 20 percent rating for the right lower extremity are warranted. Throughout this period, the lay and medical evidence of record reflects that the Veteran's femoral lower extremity radiculopathy more nearly approximates symptoms of moderate, incomplete paralysis of the femoral nerve under DC 8526. For instance, the July 2016 VA examination identified moderate bilateral radiculopathy of the lower extremities with only femoral nerve involvement. Additionally, the most recent March 2017 VA examiner noted that the radiculopathy of the bilateral lower extremities was moderate in the left and mild in the right. At no time since June 16, 2016 has the evidence indicated that symptoms have reflected more than a moderate incomplete paralysis of the femoral nerve in either lower extremity. The lay and medical evidence reflects that the Veteran has not complained of more than intermittent symptoms in either of his July 2016 or March 2017 VA examinations or in treatment records. The July 2016 VA examination revealed normal muscle strength and reflexes. The most recent March 2017 VA examination revealed no objective findings of abnormal motor, sensory or reflexes. VA records reflect largely normal sensory and muscle strength testing. No findings or reports of constant pain or muscle atrophy have been shown. As such, the Board finds that since June 16, 2016, a 20 percent disability rating for each lower extremity under DC 8526 adequately contemplates the Veteran's symptoms of femoral radiculopathy. As the appeal period dates back to November 15, 2010, the Board has considered whether separate ratings are warranted prior to June 16, 2016 for the Veteran's femoral radiculopathy of either the right or left lower extremity. However, VA examinations from December 2010 and May 2014 did not identify any femoral nerve impairment. As such, the Board finds that prior to June 16, 2016, entitlement to a separate rating under DC 8526 is not warranted. The Board finds that initial ratings in excess of 10 percent for the Veteran's sciatic radiculopathy of the left lower extremity or for the right lower extremity are not warranted at any time during the appeal period. The evidence of record fails to establish symptoms reflective of more than mild incomplete paralysis of the sciatic nerve under DC 8520. The lay and medical evidence reflects that the Veteran has not complained of more than intermittent symptoms in VA records or examinations from December 2010, May 2014 or March 2017 VA examinations. Specifically, VA records predominantly reflect symptoms of radiating pain, with lesser symptoms of numbness, tingling or weakness. There is no showing of constant pain. Significantly, the May 2014 VA examiner identified mild bilateral radiculopathy of the lower extremities with sciatic nerve involvement. All three VA examinations in December 2010, May 2014 and March 2017 found normal sensory, muscle and/or motor testing, with no signs of muscle atrophy. Likewise, VA records show only intermittent findings of abnormal reflexes and positive straight leg test results with largely normal muscle and sensory testing. There are no signs of muscle atrophy. In making the above finding, the Board observes the March 2017 VA examiners' finding of "moderate" radiculopathy in the left lower extremity refers to the impairment from the femoral nerve, discussed above. The sciatic nerve was indicated to be normal during that evaluation, and was described elsewhere in the record as no more than mild in severity. As indicated above, such moderate symptoms of femoral radiculopathy are already contemplated by the 20 percent rating under DC 8526. As such, the Board finds that a 10 percent disability rating for each lower extremity under DC 8520 adequately contemplates the Veteran's symptoms of sciatic radiculopathy. TDIU from September 2, 2014 By way of history, the Veteran's claim of TDIU arises as part of his increased rating claim for his low back condition on appeal, filed November 15, 2010. The matter of entitlement to TDIU for the period prior to September 2, 2014 is addressed in the remand portion of this decision below. The following analysis will address entitlement to TDIU for the period from September 2, 2014. The Veteran meets the requirements for TDIU consideration under 38 C.F.R. §§ 4.16(a). The Veteran is service connected for major depression at 50 percent disabling, a lumbar spine disability at 20 percent disabling, femoral lower extremity radiculopathy at 20 percent disabling (each), and sciatic lower extremity radiculopathy at 10 percent disabling (each). Here, the Veteran's combined disability rating is at least 70 percent with at least one disability rated at 40 percent disabling. The Veteran was granted Social Security Administration (SSA) disability benefits as of November 2010 for disorders of the back (disc, degenerative) and an affective/mood disorder. See SSA records dated November 20, 2013. The Veteran's work history is significant for physical employment and his education includes completion of high school. Since separation from service in August 1996, the Veteran has worked primarily in the construction industry, with positions as a warehouse supervisor, laborer and maintenance technician. Duties included maintenance, inventory, some welding and plumbing. See e.g., SSA records dated November 20, 2013, pg. 89 of 95. A February 2012 VA vocational rehabilitation record reflects that a determination was made that it was not feasible for the Veteran to benefit from a program designed to return him to gainful employment. A January 2011 counseling narrative found that the Veteran's work history prepared him for physical labor and heavy equipment operation which was too physically demanding and aggravated his service-connected back and mental health conditions. The Veteran was not familiar with even basic computer skills. The analysis supported a finding that the Veteran was significantly impaired in his ability to participate in a program and achieve rehabilitation due to a number of factors, including his service connected depression, symptoms of chronic pain, social withdrawal, a lack of education and training, among others. See records dated May 18, 2017, pg. 107, 117 of 490. VA spine examiners in May 2014 and July 2016 with a May 2017 addendum indicated that the Veteran is incapable of more than sedentary employment due to functional limitations caused by his low back condition, to include problems with bending, twisting, carrying, lifting, standing and walking. The July 2015 VA psychiatric examiner, in a May 2017 addendum, opined that the Veteran's service-connected mental health symptoms would require him to have a flexible work environment where he could leave for short periods of time to calm his nerves, as necessary, due to difficulty managing stress and his tendency to become easily overwhelmed. Additionally, he would likely have difficulty working in an environment where he is unsupervised for long periods of time and he may require additional time to complete tasks or learn new skills due to his fatigue, poor concentration, decreased attention span and forgetfulness. The Veteran may be able to tolerate ordinary work pressures, but excessive workloads, quick decision making, rapid changes, and multiple demands in the workplace should be avoided. In light of the above, the Board concludes that the Veteran cannot obtain and maintain substantially gainful employment due to his service-connected disabilities. As such, the Board finds that the Veteran is entitled to TDIU for the period from September 2, 2014. ORDER Entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. Entitlement to an initial rating of 20 percent, but no higher, for femoral radiculopathy of the left lower extremity is granted, since June 16, 2016, but no earlier. Entitlement to an initial rating of 20 percent, but no higher, for femoral radiculopathy of the right lower extremity is granted, since June 16, 2016, but no earlier. Entitlement to an initial rating in excess of 10 percent for sciatic radiculopathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for sciatic radiculopathy of the right lower extremity is denied. Effective September 2, 2014, entitlement to TDIU is granted. REMAND Prior to September 2, 2014, the Veteran does meet the schedular requirement for a TDIU under 38 C.F.R. § 4.16(a). At this time, the Veteran's major depression was rated as 30 percent disabling, his low back condition was at 20 percent disabling and his sciatic radiculopathy of the bilateral lower extremities were each at 10 percent disabling. Here, the Veteran's combined disability is less than 70 percent, and the Veteran does not have a single disability rating of at least 60 percent, even in consideration of diseases of common etiology and the bilateral factor under 38 C.F.R. § 4.25. However, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. Here, evidence suggests that the Veteran may have been unable to obtain substantially gainful employment due to his service-connected disabilities from November 15, 2010 to September 2, 2014. During this period on appeal, the evidence of record reflects that the Veteran has not participated in any full time employment and he has been in receipt of SSA disability benefits due to low back and psychiatric conditions. However, the Board may not grant an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b) and the Veteran's TDIU claim must be submitted to the Director of the Compensation and Service for extraschedular consideration. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim for a TDIU to the Director of the Compensation Service for consideration of whether an extraschedular TDIU is warranted from November 15, 2010 to September 2, 2014. 2. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs