Citation Nr: 18143214 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 10-13 416 DATE: October 18, 2018 ORDER A higher initial rating of 20 percent for the period through December 5, 2016, is granted for service-connected radiculopathy of the right lower extremity, but an initial rating higher than 40 percent for the period beginning December 6, 2016, is denied. A rating higher than 20 percent for the period through December 5, 2016, and higher than 40 percent for the period beginning December 6, 2016, for service-connected entrapment of the lumbar nerve root of the left lower extremity is denied. A total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The radiculopathy of the Veteran’s right lower extremity caused moderate incomplete paralysis through December 5, 2016, but beginning December 6, 2016, it has not resulted in severe incomplete paralysis with marked muscular atrophy. 2. The entrapment of the lumbar nerve root of the Veteran’s left lower extremity did not cause moderately severe incomplete paralysis through December 5, 2016, and has not resulted in severe incomplete paralysis with marked muscular atrophy beginning December 6, 2016. 3. The Veteran’s service-connected disabilities, which meet the rating requirements for consideration on a schedular basis, have not been of such severity that he is unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating of 20 percent for the period through December 5, 2016, have been met for service-connected radiculopathy of the right lower extremity, but the criteria for an initial rating higher than 40 percent for the period beginning December 6, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, 4.124a Diagnostic Code 8520 (2018). 2. The criteria for a rating higher than 20 percent for the period through December 5, 2016, and higher than 40 percent for the period beginning December 6, 2016, have not been met for service-connected entrapment of the lumbar nerve root of the left lower extremity. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, 4.124a Diagnostic Code 8520 (2018). 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to October 1986. This matter is on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA). May 2011 (notice was not sent until June 2011) and January 2017 rating decisions increased the ratings for the two service-connected disabilities on appeal for various periods. Both issues remained on appeal, however, because even higher ratings are possible. AB v. Brown, 6 Vet. App. 35 (1993). In October 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board of Veterans’ Appeals (Board). The Board remanded this matter for additional development in February 2014 and April 2016. To the extent there is additional pertinent evidence, it is reviewed initially by the Board herein because the right to have the agency of original jurisdiction do so (which usually is the RO) has been waived by the Veteran’s representative. 38 C.F.R. § 20.1304(c). Preliminary Matters VA has a duty to notify a claimant seeking VA benefits. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Notice must be provided prior to initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice of how ratings and effective dates are assigned also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist a claimant seeking VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes, as suggested by the duty to notify, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity. 38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). A VA medical examination also must be provided and/or a VA medical opinion procured when necessary for adjudication. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Full notice was provided to the Veteran in July 2008, prior to initial adjudication via the April 2009 rating decision. Service connection, the original benefit sought for the right lower extremity disability on appeal, was granted therein. Notice of downstream issues like a higher initial rating is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA treatment records and some private treatment records are available. The Veteran did not submit additional private treatment records or even identify and authorize the release of any for VA to obtain on his behalf, despite having the opportunity to do so. Finally, his identified employer provided very little and only general information because his records were old and thus not retained. In October 2008, July 2010, April 2015 (with addendums), December 2016 (with addendum), April 2018, and May 2018, he underwent pertinent VA medical examinations. Neither the Veteran nor his representative has raised any duty to notify or assist deficiencies. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (the Board is not required to address procedural arguments that are not raised); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (concerning the duty to notify). There next has been at least the required substantial compliance with the Board’s remands. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998). Finally, the issues on appeal were explained and potential sources of evidence were explored at the Veteran's hearing. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). It was not suggested that he submit any evidence, because none was identified, but the Board’s subsequent remands nevertheless sought some (updated treatment records). Higher Ratings Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A rating is assigned under the Rating Schedule by comparing the extent to which a claimant’s disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the criteria for the disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The disability’s history and all other relevant evidence is to be considered. 38 C.F.R. §§ 4.1, 4.6. Examinations are to be interpreted and, if necessary, reconciled. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating is assigned if the disability more nearly approximates the criteria required for it. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability, or any other point, is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Different ratings may be assigned for different periods of time for the same disability, a practice known as staging the rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); Francisco v. Brown, 7 Vet. App. 55 (1994). If a disability has worsened, consideration therefore must be given to when the worsening occurred. The period in question for a higher rating, as opposed to a higher initial rating, begins one year prior to the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Accordingly, the discussion below is limited to this evidence as well as that required to address any arguments raised by the Veteran, his representative, or the evidence. Scott, 789 F.3d at 1375; Robinson v. Peake, 21 Vet. App. 545 (2008). 38 C.F.R. § 4.124a addresses neurological disabilities. The Veteran’s service-connected radiculopathy of the right lower extremity and entrapment of the lumbar nerve root of the left lower extremity are rated pursuant to Diagnostic Code 8520 thereunder. Diagnostic Code 8520 is for paralysis of the sciatic nerve. It, as well as Diagnostic Codes 8620 and 8720 for neuritis and neuralgia of the sciatic nerve, assigns a 10 percent rating for mild incomplete paralysis. Moderate incomplete paralysis is assigned a 20 percent rating, while moderately severe incomplete paralysis is assigned a 40 percent rating. Severe incomplete paralysis with marked muscular atrophy merits a 60 percent rating. The maximum rating of 80 percent is reserved for complete paralysis. Complete paralysis exists when the foot dangles and drops, no active movement is possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis indicates a degree of lost or impaired function substantially less than that for complete paralysis. 38 C.F.R. § 4.124a, opening paragraph for diseases of the peripheral nerves. Mild, moderate, moderately severe, and severe are not defined. However, the rating is limited to the mild or at most the moderate degree when involvement is wholly sensory. Id. The maximum rating for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis. 38 C.F.R. § 4.123. For neuritis not characterized by such organic changes, the maximum rating is equal to that for moderately severe incomplete paralysis. Id. The maximum rating for neuralgia, characterized by dull and intermittent pain, finally is equal to that for moderate incomplete paralysis. 38 C.F.R. § 4.124. 1. Radiculopathy of the Right Lower Extremity For service-connected radiculopathy of the Veteran’s right lower extremity, the initial ratings currently assigned are noncompensable (0 percent) through July 28, 2010, 10 percent from July 29, 2010, to December 5, 2016, and 40 percent beginning December 6, 2016. The Board finds that higher initial ratings are warranted for these first two periods but that a higher initial rating is not warranted for the last period. A 20 percent initial rating specifically is warranted through December 5, 2016, because the criteria for it were more nearly approximated. An initial rating higher than 40 percent is not warranted beginning December 6, 2016, because the criteria for it are not more nearly approximated. Throughout the pendency of his appeal, the Veteran has complained primarily of right leg numbness. He also has complained of tingling and pain. This pain was not described through December 5, 2016, but it was described as both constant and at times excruciating as well as intermittent and dull beginning December 6, 2016. The Veteran’s sensation in his right leg through December 5, 2016, was intermittently decreased. It was normal per a December 2007 private treatment record, a March 2008 VA treatment record, and at the April 2015 VA medical examination, but it was decreased in the calf at the October 2008 examination and in the thigh at the July 2010 examination. In addition, the Veteran had no muscle atrophy and normal muscle strength except for at the July 2010 examination when the extensor hallucis longus muscle was weak. His reflexes finally often, but not always, were decreased. The Veteran’s knee reflex was normal per the December 2007 private and March 2008 VA treatment records as well as at the April 2015 examination. Yet it was hypoactive at the October 2008 and July 2010 examinations. His ankle reflex was normal per the March 2008 VA treatment record, hypoactive at the October 2008 and July 2010 examinations, and absent per the December 2007 private treatment record and at the April 2015 examination. This VA medical examination indicated that the Veteran’s decreased ankle reflex may be due to age. The December 2016 examination, where it was hypoactive with distraction and absent without distraction, determined that it was less likely than not due to his radiculopathy because it was not associated with foot drop as would be expected. However, neither the previous examinations and VA treatment records nor the subsequent examinations in April 2018 and May 2018 made similar determinations or even suggested such. Reasonable doubt thus is resolved in the Veteran’s favor such that his decrease ankle reflex is taken into account as a symptom of his radiculopathy. In sum, the maximum rating allowable is not capped for him based on his involvement. He indeed had mostly normal muscle strength but intermittent decreased sensation, an intermittent decreased knee reflex, and a mostly persistent decreased ankle reflex. At most, this supports characterizing the Veteran’s condition as moderate through December 5, 2016. It is significant that his symptoms, whether overall or individually, never were described in VA treatment records or at any VA medical examination as moderately severe or worse. Beginning December 6, 2016, the Veteran’s condition has been variously characterized. The box to characterize it as severe was checked at the examinations on this date and in April 2018. However, the only options were mild, moderate, and severe. The remarks section of the December 2016 examination clarified that moderately severe is most appropriate. Both examinations were conducted by the same examiner, and the same findings were made at each except sensation was decreased in one more area in April 2018 than December 2016. The moderately severe clarification therefore applies to the latter as well as the former examination. The May 2018 VA medical examination lastly characterized the Veteran’s condition as moderate. There is no actual severe characterization starting December 6, 2016. There also is no marked muscular atrophy. The Veteran did not have any muscle atrophy at all upon examination on this date, in April 2018, or in May 2018. His reports of his symptoms and their effects, primarily needing to adjust positions frequently and stumbling, during both of the aforementioned periods are competent. Layno v. Brown, 6 Vet. App. 465 (1994). They also are credible, as no reason is found to doubt him. As a layperson with no medical expertise, he nevertheless is not competent to determine the appropriate initial ratings. Doing so is medically complex, requiring knowledge of the neurological system and analysis of specific tests. Jandreau v. Nicholson, 492 F.3d 1372, n.4 (Fed. Cir. 2007). Greater weight thus is afforded to the medical evidence. Consideration has been given to rating under a different Diagnostic Code. However, none are for application as there is no indication that any nerve other than the sciatic nerve is affected. The May 2018 VA medical examination indeed specifically made this determination. A higher initial rating for the Veteran’s service-connected radiculopathy of the right lower extremity, in conclusion, is granted in part and denied in part based on the preponderance of the evidence. As such, there is no benefit of the doubt to afford to the Veteran. To the extent the May 2015 and June 2015 addendums to the April 2015 VA medical examination, indicate that radiculopathy is not an appropriate label for the Veteran’s disability, the Board notes that it is not concerned with the label but rather the severity. No further issues have been raised. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not required to address issues unless they are raised). 2. Entrapment of the Lumbar Nerve Root of the Left Lower Extremity For service-connected entrapment of the lumbar nerve root of the Veteran’s left lower extremity, the ratings currently assigned are 20 percent through December 5, 2016, and 40 percent beginning December 6, 2016. The Board finds that higher ratings are not warranted for either period. The criteria for even the next higher rating of 40 percent specifically were not more nearly approximated through December 5, 2016, while the criteria for the next highest rating of 60 percent are not more nearly approximated for the period beginning December 6, 2016. Throughout the pendency of his appeal, the Veteran has complained primarily of left leg numbness. He also has complained of tingling and pain. This pain was not described through December 5, 2016, but it was described as both constant and at times excruciating as well as intermittent and dull beginning December 6, 2016. The Veteran’s sensation in his left leg through December 5, 2016, was normal per a December 2007 private treatment record, a March 2008 VA treatment record, and the July 2008 and April 2015 VA medical examinations. It was decreased in the thigh at the July 2010 examination. In addition, the Veteran had no muscle atrophy and normal muscle strength except for at the July 2010 examination when the extensor hallucis longus muscle was weak. His reflexes finally often, but not always, were decreased. The Veteran’s knee reflex was normal per the December 2007 private and March 2008 VA treatment records and the April 2015 examination but was hypoactive at the October 2008 and July 2010 examinations. His ankle reflex was normal per the March 2008 VA treatment record, hypoactive at the July 2010 examination, and absent per the December 2007 private treatment record and at the October 2008 and April 2015 examinations. Like with the right leg, this VA medical examination indicated that the Veteran’s decreased left leg ankle reflex may be due to age. The December 2016 examination, where it was hypoactive with distraction and absent without distraction, determined that it was less likely than not due to his entrapment of the lumbar nerve root because it was not associated with foot drop as would be expected. However, neither the previous examinations and VA treatment records nor the subsequent examinations in April 2018 and May 2018 made similar determinations or even suggested such. Reasonable doubt thus is resolved in the Veteran’s favor such that his decrease ankle reflex is taken into account as a symptom of his entrapment of the lumbar nerve root. In sum, the maximum rating allowable is not capped for him based on his involvement. He indeed had mostly normal sensation and muscle strength but an intermittent decreased knee reflex and a mostly persistent decreased ankle reflex. At most, this supports characterizing the Veteran’s condition as moderate through December 5, 2016. It is significant that his symptoms, whether overall or individually, never were described in VA treatment records or at any VA medical examination as moderately severe or worse. Beginning December 6, 2016, the Veteran’s condition has been variously characterized. The box to characterize it as severe was checked at the examinations on this date and in April 2018. However, the only options were mild, moderate, and severe. The remarks section of the December 2016 examination clarified that moderately severe is most appropriate. Both examinations were conducted by the same examiner, and the same findings were made at each except sensation was decreased in one more area in April 2018 than December 2016. The moderately severe clarification therefore applies to the latter as well as the former examination. The May 2018 VA medical examination lastly characterized the Veteran’s condition as moderate. In sum, there is no actual severe characterization beginning December 6, 2016. There also is no marked muscular atrophy. The Veteran indeed did not have any muscle atrophy at all upon examination on this date, in April 2018, or in May 2018. His reports of his symptoms and their effects, primarily needing to adjust positions frequently and stumbling, during both of the aforementioned periods are competent. Layno, 6 Vet. App. at 465. They also are credible, as no reason is found to doubt him. As a layperson with no medical expertise, he nevertheless is not competent to determine the appropriate initial ratings. Doing so is medically complex, requiring knowledge of the neurological system and analysis of specific tests. Jandreau, 492 F.3d at 1372, n.4. Greater weight thus is afforded to the medical evidence. Consideration has been given to rating under a different Diagnostic Code. However, none are for application as there is no indication that any nerve other than the sciatic nerve is affected. The May 2018 VA medical examination indeed specifically made this determination. A higher rating for the Veteran’s service-connected entrapment of the lumbar nerve root of the lower extremity, in conclusion, is denied based on the preponderance of the evidence. As such, there is no benefit of the doubt to afford to the Veteran. To the extent the May 2015 and June 2015 addendums to the April 2015 VA medical examination, indicate that radiculopathy is not an appropriate label for the Veteran’s disability, the Board notes that it is not concerned with the label but rather the severity. No further issues have been raised. Doucette, 28 Vet. App. at 366. TDIU Total disability means that there is an impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation "provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days" actually worked. Faust v. West, 13 Vet. App. 342 (2000). A TDIU is granted if the claimant is unable to secure or follow a substantially gainful occupation due to service-connected disability or disabilities rated less than 100 percent. 38 C.F.R. § 4.16(a). A TDIU may be granted on a schedular basis when there is one service-connected disability rated at 60 percent or more. It also may be granted on a schedular basis when there are two or more service-connected disabilities with a combined rating of 70 percent or more and one is rated individually at 40 percent or more. 38 C.F.R. § 4.16(a). If a TDIU cannot be granted on a schedular basis, it may be granted on an extraschedular basis if referral first is made to the Director of the Compensation and Pension Service. 38 C.F.R. § 4.16(b). Education, training, and previous work are considerations, but not age and the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Pederson v. McDonald, 27 Vet. App. 276 (2015). Only the most relevant evidence must be discussed. Gonzales, 218 F.3d at 1378. Indeed, the discussion below is limited to this evidence as well as that required to address contentions raised by the Veteran, his representative, or the evidence. Scott, 789 F.3d at 1375; Robinson, 21 Vet. App. at 545. When there is an approximate balance of positive and negative evidence on any point, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Based on the decisions made herein, the Veteran’s service-connected radiculopathy of the right lower extremity and service-connected entrapment of the lumbar nerve root of the left lower extremity both were rated at 20 percent through December 5, 2016, and at 40 percent beginning December 6, 2016. His service-connected back disability (traumatic arthritis, lumbosacral spine, with degenerated disc) has a rating of 40 percent. Finally, he has a 10 percent rating for service-connected tinnitus and a noncompensable rating for service-connected bilateral hearing loss. The Veteran’s back disability satisfies the individual rating requirement for when there are two or more service-connected disabilities. The combined rating for all his disabilities, with rounding and taking into account the bilateral factor, was 70 percent through December 5, 2016, and 80 percent beginning December 6, 2016. 38 C.F.R. § 4.25 (setting forth a combined rating table, as ratings are not simply added together). The Veteran therefore meets the 70 and 40 percent rating requirements for both of the aforementioned periods. He alternatively meets the 60 percent rating requirement for when there is only one service-connected disability for both of these periods. Disabilities resulting from common etiology are considered as one disability. 38 C.F.R. § 4.16(a). As the Veteran’s radiculopathy and entrapment are associated with his back disability, they share an etiology or origin. The rating when they are considered as one is 60 percent through December 5, 2016, and 80 percent beginning December 6, 2016. 38 C.F.R. § 4.25. The Veteran, in sum, may be granted a TDIU on a schedular basis for both of the aforementioned periods. However, the Board finds that his service-connected disabilities have not been of sufficient severity to render him unable to secure or follow a substantially gainful occupation during them. While the Veteran has reported having no specialized training, he also has reported having about two years of college education. He further has reported securing and following a substantially gainful occupation from the mid 1980’s until 2001. Specifically, he worked full-time as a technical writer, which involved sitting at a desk and using a computer almost all day. His employer confirmed his dates of employment. Yet, for the reasons noted above, any more or greater information could not be provided. The Veteran finally reported returning to work full-time in the same position for the same employer from June 2003 to September 2004. His employer neither confirmed nor refuted this. With respect to why he quit on both occasions, the Veteran has reported that his back disability (and by extension his lower extremity disabilities) interfered with prolonged sitting, standing, or walking. His job necessitated prolonged sitting, so he accommodated by getting up frequently for a drink of water, to talk to coworkers, or the like. Getting up frequently broke the Veteran’s concentration, another necessity of the job, and led him to believe that his employer was not getting its money’s worth out of him. T.L., a coworker, recounted in a January 2008 statement that the Veteran had obvious back problems at work. R.P., another coworker, recounted in a January 2008 statement that the Veteran would get up every five minutes due to these problems. Yet a December 2007 private treatment record noted a sitting tolerance of 30 to 60 minutes, seemingly based on the Veteran’s report. He lastly reported having to strain to hear what others said during work meetings as well as having to ask others to repeat themselves and or having to get closer to them to hear what was said. After leaving his position, he reported not seeking another position. Yet, he seemingly referenced doing contract or similar work. His employer, a retired military man, allowed him to do what he needed such as stand or walk around to accommodate his disabilities. The Veteran conveyed his belief that such understanding employers cannot be found everywhere. Thus, the Veteran is qualified for skilled or at least semi-skilled jobs. He has the knowledge required for them, based on some college education, as well as proven success in them, as exemplified by well over a decade worth of experience in them. The Veteran is overqualified for entry-level jobs. At the VA medical examinations concerning his back and lower extremity disabilities, it was determined that they caused pain, numbness, and similar symptoms which interfered with his ability to perform work activities. The July 2010 examination generally noted marked fatigue and weakness. The April 2015 examination more specifically identified difficulty with lifting, bending, carrying, pushing, pulling, standing, walking, balancing, and climbing. In addition, the Veteran reported difficulty with twisting. Discomfort and distraction were the only relevant difficulties identified in the June 2015 addendum. The December 2016 examination deemed him unable to engage in any manual labor, whether heavy, moderate, or light. This examination as well as the April 2018 examination further identified preclusions from bending or lifting repetitively as well as from prolonged standing or walking. The May 2018 examination similarly identified preclusions from prolonged standing and walking, given the Veteran’s limitations with respect to these activities. However, the overall impact on his ability to function occupationally was characterized as moderate. The examination concerning only his lower extremity disabilities, but his back disability was discussed. This includes in the assessment of the effects on his work. As such, the characterization encompasses the back disability (especially given its relation to the lower extremity disabilities) as well. It finally was opined that sedentary employment was feasible. The same determination was made at the December 2016 VA medical examination, and a January 2017 addendum clarified that it was the only feasible work. Significantly, whether or not a veteran is capable of working is not a medial question. Geib v. Shinseki, 733 F. 3d 1350 (2013). Rather, this question is to be answered by adjudicators. The Board agrees with the aforementioned that the Veteran is capable of sedentary work notwithstanding his back and lower extremity disabilities. As it applies to the Veteran specifically, the meaning of sedentary work must be explained. Withers v. Wilkie, No. 16-1543, 2017 U.S. App. Vet. Claims LEXIS 1054 (Vet. App. Aug. 10, 2018). Sedentary work for him means a position which allows him to sit for a majority of the time and involves very little to no manual labor activities such as those listed above. Primarily working on a computer, as he did when he was a technical writer, meets this definition. To accommodate the Veteran’s back and lower extremity disabilities, he is limited to positions that allow him to get up and stand/walk around for a few minutes frequently. He believes that not many employers would be accommodating in this regard. Yet, it appears that one was when he did contract or similar work, and no conclusion can be made that others would not without supporting evidence. There is none here. Getting up frequently may require a sedentary position that does not involve deep concentration, like technical writing, but some such positions exist. The Veteran potentially would have to settle for a semi-skilled or entry-level sedentary job due to his back and lower extremity disabilities even though he would be capable of doing a skilled job without them, in other words. His tinnitus and bilateral hearing loss disabilities, which according to a December 2008 VA medical examination causes difficulty understanding, finally were not noted to interfere with his ability to perform any work activities. Still, a lot of time on the telephone and the like is not ideal in light of them. This additional limitation narrows the pool of sedentary positions the Veteran can secure and follow even further. Yet, even with this limitation and the limitation of getting up frequently, some such positions exist. A TDIU, in conclusion, is denied based on the preponderance of the evidence. No further issues have been raised. Doucette, 28 Vet. App. at 366. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becker, Counsel