Citation Nr: 1827508 Decision Date: 05/03/18 Archive Date: 05/14/18 DOCKET NO. 13-20 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease of the lumbar spine, evaluated as 20 percent disabling prior to December 7, 2009 and 40 percent disabling from that date. 2. Entitlement to an initial increased rating for peripheral neuropathy of the right lower extremity, evaluated as 20 percent disabling prior to May 18, 2011 and 40 percent disabling from that date. 3. Entitlement to an initial increased rating for peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling from December 7, 2009 to April 29, 2013; 20 percent disabling from April 30, 2013 to December 16, 2014; and 40 percent disabling from December 17, 2014. 4. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) prior to September 14, 2014 to include on an extraschedular basis. 5. Entitlement to compensation under 38 U.S.C. § 1151 for trigger finger of the left hand. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active duty from April 1975 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of October 2007, May 2010, and September 2015 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference hearing held in April 2016. A transcript is in the record. In May 2017, the RO issued a statement of the case for the issues of entitlement to increased ratings for neuritis of the right lower extremity and left lower extremity. In June 2017 the Veteran submitted another VA Form 9 on which he expressed his desire for a Board hearing by videoconference for these issues. A June 2017 letter notified the Veteran that he had been placed on the waiting list for a videoconference hearing. There is no indication that a hearing has ever been scheduled or held. However, the Board observes that the Veteran's claims of entitlement to increased ratings for neuritis of the right lower extremity and left lower extremity are considered to be part and parcel of his claim for an increased rating for his back disability. See 38 C.F.R. § 4.71a, Codes 5242, 5243, General Rating Formula for Diseases and Injuries of the Spine, Note (1). As such, these matters were already on appeal at the time the May 2017 statement of the case was issued and the June 2017 VA Form 9 was received. More importantly, the Veteran already provided testimony regarding these issues at the April 2016 hearing. He has not demonstrated good cause as to why he should receive a second hearing. 38 C.F.R. § 20.1304(b) (2017). This appeal was not remanded from the Court of Appeals for Veterans Claims (Court or CAVC), and the representative did not otherwise indicate that the appeal has changed or evolved since the first hearing. Accordingly, the request for a new hearing is denied. See Cook v. Snyder, 28 Vet. App. 330, 342 (2017). This matter was previously before the Board in December 2016, at which time the Veteran's 2009 substantive appeal was accepted; as a result, the October 2007 rating decision that continued a 20 percent rating for the Veteran's back disability was the original decision on appeal. The remaining issues were remanded for further development. The evaluations for the disabilities on appeal have been increased on several occasions during the course of this appeal. Most recently, a February 2018 rating decision assigned a 40 percent rating for peripheral neuropathy of the lower extremity from December 17, 2014; assigned an earlier effective date for service connection for peripheral neuropathy of the right lower extremity as well as increased evaluations to 20 percent from March 6, 2007 and to 40 percent from May 18, 2011; assigned a 40 percent rating for the Veteran's lumbar spine disability from April 30, 2013 on the basis of clear and unmistakable error in a prior decision, and assigned an earlier effective date of September 14, 2014 for the grant of TDIU. The Veteran has not expressed final satisfaction with any of these actions. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, as the Veteran has not expressed satisfaction with the increases awarded by the RO, his claims remain on appeal. The issues have been framed to reflect the most recent changes. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. For the period prior to December 7, 2009, the forward flexion of the thoracolumbar spine was not limited to 30 degrees or less even with consideration of pain, weakness, incoordination or fatigue, and there was no evidence of ankyloses. 2. For the period from December 7, 2009, there is evidence of favorable ankyloses of the thoracolumbar spine without evidence of unfavorable ankyloses of any portion of the spine. 3. For the period prior to February 8, 2011, the Veteran's peripheral neuropathy of the right lower extremity was productive of moderate incomplete neuritis of the sciatic nerve. 4. For the period from February 8, 2011, the Veteran's peripheral neuropathy of the right lower extremity has been productive of no more than moderately severe incomplete neuritis with no evidence of atrophy. 5. For the period from December 7, 2009 to April 29, 2013, the Veteran's peripheral neuropathy of the left lower extremity was productive of no more than mild incomplete neuritis of the sciatic nerve. 6. For the period from April 30, 2013 to December 16, 2014, the Veteran's peripheral neuropathy of the left lower extremity was productive of no more than moderate incomplete neuritis of the sciatic nerve. 7. For the period from December 17, 2014, the Veteran's peripheral neuropathy of the left lower extremity has been productive of no more than moderately severe neuritis of the sciatic nerve without evidence of atrophy. 8. Although the Veteran meets the schedular criteria for consideration of TDIU as of February 8, 2011, he remained able to secure and follow a substantially gainful occupation until September 14, 2014. 9. The schedular criteria for consideration of TDIU were not met prior to February 8, 2011, but the Veteran remained able to secure and follow a substantially gainful occupation during that time. 10. The Veteran underwent carpal tunnel release surgery for the left wrist in August 2014, and early trigger fingers of the left hand were diagnosed in June 2015. 11. Medical opinion states that the trigger fingers of the left hand are unrelated to the carpal tunnel release surgery of the left wrist; that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; and there is no documentation to support the condition was due to any not reasonably foreseeable event. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine prior to December 7, 2009 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.21, 4.40, 4.45, 4.71a, Codes 5242, 4243 (2017). 2. The criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine from December 7, 2009 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.21, 4.71a, Codes 5242, 5243 (2017). 3. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity prior to February 8, 2011 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.21, 4.123, 4.124a, Codes 8520, 8620 (2017). 4. The criteria for a 40 percent rating have been met as of February 8, 2011 for peripheral neuropathy of the right lower extremity; the criteria for a rating in excess of 40 percent for peripheral neuropathy of the right lower extremity have not been met for any portion of the appeal period subsequent to February 8, 2011. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.21, 4.123, 4.124a, Codes 8520, 8620 (2017). 5. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity from December 7, 2009 to April 29, 2013 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.21, 4.123, 4.124a, Codes 8520, 8620 (2017). 6. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity from April 30, 2013 to December 16, 2014 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.21, 4.123, 4.124a, Codes 8520, 8620 (2017). 7. The criteria for a rating in excess of 40 percent for peripheral neuropathy of the left lower extremity from December 17, 2014 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.21, 4.123, 4.124a, Codes 8520, 8620 (2017). 8. The criteria for entitlement to a total rating based on individual unemployability due to service connected disabilities prior to September 14, 2014 to include on an extraschedular basis have not been met. 38 C.F.R. §§ 3.321(b)(1), 3.341, 4.16, 4.19 (2017). 9. The criteria for compensation under 38 U.S.C. § 1151 for trigger finger of the left hand have not been met. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.361, 17.32 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations obligate VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, the Veteran was provided with complete VCAA notification in a July 2007 letter that was provided prior to the initial adjudication of his claim. The duty to notify has been met. The Board also finds that the duty to assist has been met. The Veteran has exercised his right to a hearing and his testimony is part of the record. He has been afforded several VA examinations of his back disability and the associated neuropathy of the right and left lower extremities. The December 2016 Board remand requested that additional examinations be conducted for the Veteran's back and associated peripheral nerve symptoms, and for his 1151 claim. These were completed in January 2017. The Board is aware that the January 2017 VA examination of the back did not include the passive range of motion testing requested in the December 2016 remand. A September 2017 addendum merely notes that there was no gross evidence that passive range of motion testing was conducted. However, the Board finds that this omission is harmless error. In this case, the Veteran is already in receipt of a 40 percent rating for his back disability for the period covered by this examination. A higher rating can result only from ankyloses or incapacitating episodes. See 38 C.F.R. § 4.71a, Codes 5242, 5243, General Rating Formula for Diseases and Injuries of the Spine; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The January 2017 examination includes the information required to rate under these criteria. In addition, neither the Veteran nor the representative contends that the January 2017 examination was inadequate, so another VA examination of the joints is not necessary. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The remaining criteria necessary to evaluate the Veteran's disabilities are included in the report, and the only examination for the period prior to December 7, 2009 includes both the active and passive range of motion. In sum, the Board finds that the overall evidence of record is sufficient to understand the disability picture and assess the proper rating. There is no indication that there is any outstanding relevant evidence, and the Board will proceed with consideration of the Veteran's appeal. Increased Ratings The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (2017), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether or not a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Degenerative Disc Disease of the Lumbar Spine Entitlement to service connection for low back strain with compression fracture and degenerative changes was established in an April 1977 rating decision, with a 20 percent rating assigned effective from the Veteran's date of discharge from active service. This evaluation remained in effect when the Veteran submitted his June 2007 claim for an increased rating. Currently, the disability is diagnosed as degenerative disc disease of the lumbar spine. A 40 percent rating has been in effect from December 7, 2009, and a 20 percent rating is in effect for the appeal period prior to December 7, 2009. The Veteran's disability is evaluated under the rating codes for degenerative arthritis of the spine and intervertebral disc syndrome. Both of these disabilities are evaluated under the General Rating Formula for Disease and Injuries of the Spine. 38 C.F.R. § 4.71a, Codes 5242, 4243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for disability of the thoracolumbar spine when there is 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 is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankyloses of the entire thoracolumbar spine warrants a 40 percent rating. Unfavorable ankyloses of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankyloses of the entire spine is evaluated as 100 percent disabling. Unfavorable ankyloses is a condition with which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note 5 of the General Rating Formula for Diseases and Injuries of the Spine. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are from zero to 45 degrees, and left and right lateral rotation are to 80 degrees. The combined range of motion refers to the sum of the forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, and the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Each range of motion measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). Any associated objective neurologic abnormalities, including but not limited to bowel and bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The rating code for degenerative arthritis of the spine instructs that diagnostic code 5003 must also be considered. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Intervertebral disc syndrome may alternatively be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assigned. For incapacitating episodes having a total duration of at least for weeks but not more than six weeks during the past 12 months, a 40 percent rating is assigned. 38 C.F.R. § 4.71a, Code 5243. 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. C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). a) Prior to December 7, 2009 The Veteran was afforded a VA examination of his spine in August 2007. He reported mid to low back pain after sitting for long periods of time. This occurred daily on a moderate but constant basis. Range of motion testing for flexion showed active range of motion was from zero to 80 degrees. Passive range of motion was from zero to 85 degrees. There was no pain on active or passive range of motion. The Veteran did not have any pain after repetitive use, and there was no additional loss of motion. There was no ankyloses. The Veteran did not have urinary or fecal incontinence, or numbness, paresthesias, or weakness of the lower extremities. The Veteran's intervertebral disc syndrome had produced two incapacitating episodes during the previous year. One had lasted for 24 hours, and the other lasted for two or three days. 8/4/2007 VA Examination, p. 1. Additional evidence for this period includes VA treatment records that show the Veteran was followed and treated for his back pain. In January 2007 he had low back pain that radiated into the buttocks but no lower. There was normal bladder function. 7/6/2007 Medical Treatment Record - Government Facility, p. 9. He experienced a week of severe back pain with numbness and tingling in the lower extremity in June 2008, also without bowel or bladder involvement. 12/14/2016 Capri, p. 527. The Veteran received an epidural steroid injection at L5-S1 in September 2009. 12/29/2009 Medical Treatment Record - Government Facility, p. 1. The Board concludes that entitlement to a rating in excess of 20 percent is not warranted for this period. The August 2007 VA examination did not show limitation of forward flexion to 30 degrees or less even with consideration of additional limitations due to pain, weakness, incoordination or fatigability following repetitive use. There was no ankyloses, and only two short periods of incapacitating episodes that totaled less than a week in duration. None of the other records demonstrate that the forward flexion of the thoracolumbar spine was limited to 30 degrees or less, that there was favorable ankyloses of the entire thoracolumbar spine, or incapacitating episodes lasting from between four to six weeks. The only objective neurologic abnormality during this period was the radiation of pain into the right leg, and a separate evaluation has already been assigned. There is no basis for a rating higher than 20 percent prior to December 7, 2009 for the Veteran's degenerative disc disease of the lumbar spine. 38 C.F.R. § 4.71a, Codes 5242, 5243. b) From December 7, 2009 The Veteran was afforded a VA examination of his spine in February 2010. The examiner stated that there was ankyloses of the thoracolumbar spine. It was in a neutral position. The Veteran had bilateral sciatic nerve neuritis, but no other neurological manifestations were noted. There had been three days over the past year when the Veteran had been unable to work due to the severity of his back pain. 2/3/2010 VA Examination, p. 1. Afterward, the examiner was asked to explain the discrepancy between the relatively good range of motion demonstrated in August 2007 and the finding of ankyloses in February 2010. The examiner noted several reasons that could account for this discrepancy, to include increased pain. However, he did not withdraw the finding of ankyloses. 4/28/2010 VA Examination, p. 1. At an April 2013 VA examination of the spine, the claims folder was reviewed by the examiner. The Veteran had forward flexion to 50 degrees, with pain throughout the range of motion. He was unable to perform repetitive motion testing due to pain. There was no objective evidence of a neurologic abnormality other than the radiculopathy to the lower extremities. There had been at least six weeks of incapacitating episodes over the past 12 months. 4/30/2013 VA Examination, p. 1. The next VA examination of the spine was in December 2014. The diagnoses included degenerative arthritis of the spine, as well as intervertebral disc syndrome. Forward flexion of the thoracolumbar spine was to 60 degrees. The Veteran was unable to complete repetitive motion testing. He described severe flare-ups two to three times a week lasting for up to two hours. The Veteran did not have ankylosis. He had intervertebral disc syndrome but there had been no incapacitating episodes during the previous 12 months. 12/17/2014 C&P Exam, p. 1. The most recent VA examination was conducted in January 2017. At that time, the Veteran had 70 degrees of forward flexion with evidence of pain on movement and with weight bearing. He was unable to perform repetitive motion testing, and he was limited by pain, lack of endurance and incoordination during flare-ups. The examiner indicated that during flare-up flexion would still be to 70 degrees. Other ranges of motion were also estimated to be unchanged during flare-ups. There were no objective signs or symptoms of neurological impairment other than the radiculopathy to the lower extremities. The Veteran had intervertebral disc syndrome, but there had been no incapacitating episodes over the past 12 months. 1/17/2017 C&P Exam, p. 1. The Board finds that entitlement to a rating in excess of 40 percent is not shown for any portion of the appeal period beginning December 7, 2009. The evidence does not show unfavorable ankyloses of either the thoracolumbar or the entire spine at any time. The February 2010 examination states that the Veteran has ankyloses in the neutral position. This is considered to be favorable, and is the basis of the current 40 percent rating. Ankyloses was not shown on any subsequent examinations. Because 40 percent is the highest rating based on limitation of motion, and a higher rating requires ankyloses, the provisions of 38 C.F.R. §§ 4.40, 4.45 are not applicable to consideration of a higher rating based on ankyloses. Johnston v. Brown. Finally, the only objective neurologic abnormalities during this period were the radiation of pain into the lower extremities, and separate evaluations have already been assigned for these disabilities. In reaching this decision, the Board considered an evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The April 2013 VA examination states that the Veteran had experienced more than six weeks of incapacitating episodes during the previous year, which merits a 60 percent rating. However, the Veteran must be evaluated under either this formula or the General Rating Formula for Diseases and Injuries of the Spine. As noted, the General Formula contemplates separate evaluations for associated neurologic abnormalities, and the Veteran has been in receipt of at least a 20 percent rating for peripheral neuropathy of the right lower extremity associated with the back disability and a 10 percent rating for peripheral neuropathy of the left lower extremity associated with the back disability since December 7, 2009. This combines to the same 60 percent rating that would be available under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.25. The Veteran would not be entitled to continue to receive the separate evaluations for peripheral neuropathy for any period in which he is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. §§ 4.14, 4.71a, Codes 5242-5243. Thus, it would be of no benefit to evaluate the Veteran under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes for any portion of this period, as his combined rating under the General Formula would meet or exceed the maximum 60 percent rating for the entire period. Peripheral Neuropathy As a consequence of increases awarded in a February 2018 rating decision, the Veteran's peripheral neuropathy of the right leg associated with degenerative disc disease of the lumbar spine is evaluated as 20 percent disabling before May 18, 2011 and 40 percent disabling from that date. The peripheral neuropathy of the left leg associated with degenerative disc disease of the lumbar spine is evaluated as 10 percent disabling from December 7, 2009 to April 29, 2013; 20 percent disabling from April 30, 2013 to December 16, 2014; and 40 percent disabling from December 17, 2014. The Veteran's peripheral neuropathy of each lower extremity is evaluated under the rating criteria for neuritis of the sciatic nerve. This is rated under the criteria for paralysis of the sciatic nerve. Complete paralysis of the sciatic nerve exists when the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. This is evaluated as 80 percent disabling. Severe incomplete paralysis with marked muscular atrophy is evaluated as 60 percent disabling. Moderately severe paralysis is evaluated as 40 percent disabling. Moderate paralysis is evaluated as 20 percent disabling, and mild paralysis is 10 percent disabling. 38 C.F.R. § 4.124a, Code 8520. However, the maximum evaluation for neuritis can be no more than that for severe incomplete paralysis, which in this case would be 60 percent. The maximum evaluation that can be assigned for neuritis of the sciatic nerve not characterized by the organic changes referred to in this section is moderately severe, incomplete paralysis, or 40 percent. 38 C.F.R. §§ 4.123, 4.124a, Code 8620. At the August 2007 VA examination, the Veteran did not have numbness, paresthesias, or leg or foot weakness. He had experienced radiation of pain into the right leg and heel within the last month, but there was no radiation at the time of the examination. Motor examination was 5/5 in both lower extremities. Muscle tone was normal, and there was no atrophy. Sensory examination and reflexes were normal. 8/4/2007 VA Examination, p. 1. The Veteran had a week of severe back pain with numbness and tingling in the lower extremity in June 2008. 12/14/2016 Capri, p. 527. The Veteran reported numbness and paresthesias at the February 2010 VA examination. There was radiation of pain into both buttocks. Motor strength was 5/5 in all movements of both legs. Sensory examination was decreased to light touch on the right leg but not the left. The right leg had diminished sensation to light touch with dysesthesia. The left leg had dysesthesia of the lateral leg and foot that was less intense than on the right. The sciatic nerve was the affected nerve in both legs. Reflexes were normal. The diagnoses included bilateral sciatic nerve neuritis, equivalent to mild incomplete paralysis. 2/3/2010 VA Examination, p. 1. VA treatment records from February 8, 2011 state that the Veteran's back pain radiates down the back of his right thigh and onto the anterior aspect of his right lower leg. There were infrequent episodes of numbness and tingling in the toes. On examination, straight leg raising was negative on the left, but produced pain on the right. Knee reflexes were absent on the right but normal on the left. There was good quadriceps strength. 3/7/2011 Medical Treatment Record - Government Facility, p. 3. A May 18, 2011 VA examination notes radiation of burning pain into the right leg and foot. Reflexes of the lower extremities were normal bilaterally. The sensory examination was decreased for the right leg but normal for the left. Motor examination was 4/5 for the right knee, ankle, and great toe, but 5/5 on the left. 5/18/2011 VA Examination, p. 1. At the April 2013 VA examination muscle strength testing was 4/5 for hip flexion, knee extension, ankle dorsiflexion and great toe extension bilaterally. Reflexes were normal. There was no muscle atrophy. The sensory examination was decreased in the lower legs and feet bilaterally. Straight leg testing was positive bilaterally. The Veteran had moderate constant bilateral pain which was intermittently severe bilaterally. The examiner opined that the radiculopathy was severe on the right side and moderate on the left. 4/30/2013 VA Examination, pp. 1, 10. A VA examination of the peripheral nerves was also conducted in April 2013 by the same examiner who performed the back examination. The findings were similar to those recorded for the spine. However, the examiner opined that the Veteran had mild incomplete paralysis of the sciatic nerve for both the right and left side. 4/30/2013 VA Examination, pp. 14, 20. VA treatment records from September 2014 state that the Veteran was experiencing more leg pain with severe cramp-like sensations. The pain varied from a 4 to an 8 on a scale to 10. 4/4/2013 Capri, p. 22. The December 2014 VA back examination states that the Veteran has severe radiculopathy to the right leg and moderate radiculopathy to the left. 12/17/2014 C&P Exam, p. 7. The Veteran also underwent an examination of the peripheral nerves at this time. He had pain, paresthesias and numbness of the lower extremities that were moderate to severe in the right leg and moderate in the left. Muscle strength was reduced but there was no atrophy. Reflexes of the knee and ankle were absent. The sensory examination was decreased bilaterally from the thigh and knee downwards. The examiner opined that the Veteran had moderately severe incomplete paralysis of the right sciatic nerve and moderate incomplete paralysis of the left sciatic nerve. 12/17/2014 C&P Exam, pp. 14, 18. April 2015 VA treatment records indicate that the Veteran was experiencing right leg numbness and that this led to a fall in the shower. 7/20/2015 Capri, p. 37. The most recent VA examinations of the back and peripheral nerves were conducted in January 2017. The back examination noted 4/5 muscle strength in all movements bilaterally. Reflexes were normal and the sensory examination was decreased. He had radicular pain that was moderate to severe, and the radiculopathy was considered moderately severe bilaterally. 1/17/2017 C&P Exam #1, pp. 1, 6. The January 2017 peripheral nerves examination also showed moderate to severe pain in both lower extremities, 4/5 muscle strength, and normal reflexes. There was no muscle atrophy. The examiner opined that the Veteran has moderately severe incomplete paralysis of the sciatic nerve for both the right and left leg. 1/17/2017 C&P Exam #2, pp. 1, 4. a) Right Leg Peripheral Neuropathy In order to merit a rating in excess of 20 percent prior to May 17, 2011 for the right leg, there must be evidence of at least moderately severe incomplete paralysis of the sciatic nerve. The Board finds that the VA treatment records dated February 8, 2011 support a finding of moderately severe incomplete paralysis. These records show that the Veteran had radiating pain into the lower right leg, episodes of numbness and tingling, and absent knee reflexes. These are essentially the same symptoms shown at the May 18, 2011 VA examination that were the basis for the 40 percent evaluation assigned as of that date. Therefore, a 40 percent rating for peripheral neuropathy of the right leg is warranted from February 8, 2011. 38 C.F.R. §§ 4.123, 4.124a, Code 8620. However, the evidence does not support a 40 percent rating prior to February 8, 2011. Prior to this date, the Veteran's complaints were wholly sensory, which merit at most a rating at the moderate degree. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The February 2010 VA examiner characterized the disability as only mild incomplete paralysis. Finally, the evidence does not warrant a rating higher than 40 percent for any portion of the appeal period. For a rating higher than 40 percent, there must be severe incomplete paralysis of the sciatic nerve, which in turn requires marked muscular atrophy. However, there is no evidence of atrophy of the muscles affected by the sciatic nerve on any examination. In fact, every examination states that there is no atrophy. It follows that the Veteran's peripheral neuropathy of the right leg is not considered more than moderately severe, which merits the 40 percent rating now assigned from February 8, 2011. Similarly, the Board notes that while the April 2013 VA examiner characterized the Veteran's radiculopathy as severe, this same examiner states that there was no atrophy, and only characterized the incomplete paralysis of the sciatic nerve as mild. Once again, in the absence of atrophy the disability cannot be considered more than moderately severe, which rates the 40 percent evaluation. 38 C.F.R. §§ 4.123, 4.124a, Code 8620. b) Left Leg Peripheral Neuropathy The Board finds that the evidence does not support a rating higher than 10 percent for the Veteran's peripheral neuropathy of the left leg for the period from December 7, 2009 to April 29, 2013. The February 2010 VA examination noted dysesthesia of the left leg that was not as intense as the right leg, and radiation of pain into the buttocks. There were no other positive findings, and the examiner opined that there was mild incomplete paralysis. The other records from this period show little to no symptoms involving the left leg. Mild incomplete paralysis merits the 10 percent rating that is currently in effect for this period. 38 C.F.R. §§ 4.123, 4.124a, Code 8620. The Board also finds that the evidence fails to show entitlement to a rating higher than 20 percent for the period from April 30, 2013 to December 16, 2014. The April 2013 VA examiner opined that the Veteran's radiculopathy was moderate on the left side, and added that there was mild incomplete paralysis. The Board will characterize the disability as moderate instead of mild, which is most favorable to the Veteran. This warrants the 20 percent rating that is currently in effect for this period. There is no evidence to the contrary prior to December 17, 2014. 38 C.F.R. §§ 4.123, 4.124a, Code 8620. Finally, the Board finds that the evidence does not show entitlement to a rating higher than 40 percent from December 17, 2014. As with the peripheral neuropathy of the right leg, a rating higher than 40 percent requires severe incomplete paralysis of the sciatic nerve, which in turn requires marked muscular atrophy. Every examination has been negative for atrophy, and atrophy is not shown in any treatment record. A rating in excess of 40 percent is not supported by the evidence. 38 C.F.R. §§ 4.123, 4.124a, Code 8620. TDIU The Veteran contends that he is entitled to TDIU for the period prior to September 14, 2014. He submitted his claim for TDIU on September 14, 2014. However, his claims for increased ratings have been active since June 20, 2007. A claim for an increased rating encompasses a claim for TDIU if raised by the record or the Veteran. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. With consideration of the 40 percent evaluation assigned by this decision for the peripheral neuropathy of the right lower extremity from February 8, 2011, the schedular criteria for TDIU are now met from that date. The Veteran has a combined evaluation of 70 percent from that date, with disabilities that are ratable at 40 percent. See 38 C.F.R. § 4.25; 2/12/2018 Rating Decision - Codesheet, p. 1. The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. See Van Hoose, 4 Vet. App. at 363. Thus, the central question is "whether the [V]eteran's service connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363. The Board finds that entitlement to TDIU prior to September 14, 2014 is not warranted here. The evidence shows that the Veteran held a full-time job as a corrections officer from November 10, 2008 to September 13, 2014. He reports losing 32 days due to illness during this nearly six year period, which is less than 6 days a year. The Veteran himself claimed that the day he became too disabled to work was September 13, 2014. 9/26/2014 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, p. 1. Furthermore, the Veteran's VA examinations and treatment records confirm that he worked on a full-time basis during this period. The Board observes that his position as a corrections officer would make it very unlikely that this job was a form of sheltered employment. The fact the Veteran held such a full-time job for the period in question is conclusive evidence he remained able to secure and follow a substantially gainful occupation. Although the Veteran did not meet the schedular criteria for consideration of TDIU prior to February 8, 2011, TDIU may still be assigned to a veteran who fails to meet the percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16 (b). Specifically, the regulations provide that, in exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In such a case, the Under Secretary for Benefits or the Director, Compensation Service is authorized to approve an award on an extraschedular basis. 38 C.F.R. § 3.321 (b)(1). The Board is not authorized to award extraschedular benefits in the first instance. The Veteran's case has already been forwarded to the Director for consideration of extraschedular benefits. In fact, a December 2017 decision determined that the Veteran was entitled to TDIU on an extraschedular basis for the period from September 14, 2014 to December 16, 2014. 12/14/2017 Miscellaneous C&P Correspondence, p. 1. This decision was rendered moot by the February 2018 rating decision when it determined that there had been a clear and unmistakable error in a previous evaluation of the Veteran's back disability, assigned a retroactive increase to 40 percent, and also increased the evaluation of the peripheral neuropathy of the right lower extremity to 40 percent from May 18, 2011. These changes resulted in the Veteran meeting the schedular criteria for the period in which the extraschedular award was assigned. As noted, the Veteran now meets the schedular criteria from February 8, 2011. The December 2017 decision of the Director did not find that the Veteran was entitled to TDIU on an extraschedular basis prior to that date. The Board agrees for the same reason noted above; the Veteran was employed on a full-time basis for nearly the entire period for consideration. In fact, he obtained this job in November 2008, which is during the period in question, and held it through February 8, 2011 until he became too disabled to work on September 13, 2014. As with the denial of TDIU prior to September 14, 2014 on a schedular basis, the fact the Veteran held such a full-time job for most of the period in which an extraschedular TDIU would potentially be awarded is conclusive evidence he remained able to secure and follow a substantially gainful occupation. The Board finds that there is no basis for an award of TDIU on any basis prior to September 14, 2014. 38 U.S.C. § 1151 The Veteran contends that he is entitled to compensation for the result of a disability incurred as a result of VA care under the provisions of 38 U.S.C. § 1151. He believes that his trigger fingers of the left hand are the result of carpal tunnel release surgery at a VA facility in August 2014, and says that he was told by VA personnel that trigger fingers sometimes occur after this type of surgery. A veteran may be awarded compensation for additional disability, not the result of willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701 (3)(A) (2012), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(c), (d)(1), (d)(2). To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the Veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b). VA considers each involved body part or system separately. Id. Section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the Veteran" by VA or in a VA facility. Finally, the "proximate cause" of the Veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part" of VA, or "an event not reasonably foreseeable." Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); 38 U.S.C. § 1151(a)(1)(A), (B). In determining whether the Veteran's disability was actually caused by VA hospital care or medical treatment, only a causal connection, and not direct causation, is required. Viegas, 705 F.3d at 1380; see also Brown v. Gardner, 513 U.S. 115, 119 (1994). However, a mere showing of additional disability following the receipt of VA care, treatment, or examination will not establish cause; the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 38 C.F.R. § 3.361 (c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's, informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. Id. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. C.F.R. § 3.361 (d)(2). VA records from August 6, 2014 show that the Veteran underwent surgery for left carpal tunnel release. A consent form was signed by the Veteran prior to the procedure. There were no problems or other abnormalities noted in the surgical records or the follow-up records. An August 8, 2014 note shows that the Veteran was seen in order to change his dressing. He said that there was no pain and he had complete resolution of numbness and tingling. The left arm was placed in a brace and he was advised to use the arm and hand normally with the brace in place. An August 21, 2014 note states the Veteran was approximately two weeks post op from left wrist surgery. He was doing well, and no abnormalities were noted. 12/17/2014 Capri, pp. 26-33, 44. VA treatment records from June 2015 show the Veteran was seen for complaints of wrist pain. He was having locking of some fingers on the left hand in the morning or when gripping something tightly. His carpal tunnel symptoms had completely resolved after his surgery but his new numbness problem had begun a few months earlier. On examination, some popping and triggering was elicited, but no locking. The diagnosis was left hand trigger fingers, early. The examiner believed the Veteran might be getting some return of the medial nerve compression causing complaints of numbness in the fingertips of the index and middle finger. He was to be treated with stretching, massage, and splints. 3/22/2016 Capri, p. 93. September 2015 records show that the Veteran was seen for follow-up treatment. His treatment had helped resolve the numbness but he continued to have locking and pain in the fingers. On examination, triggering was demonstrated in the middle and ring finger after making a fist. After a discussion of the potential complications, he was treated with an injection to the tendon sheath. The diagnosis was left hand trigger fingers, 4 and 5. Improvement in symptoms was noted after the injection. 3/22/2016 Capri, p. 60. After September 2015, VA records show continued treatment for the trigger fingers. However, in October 2016 the Veteran underwent trigger finger release surgery for the left middle and ring finger. 12/14/2016 Capri, p. 59. After a January 2017 examination and record review, the VA examiner stated that the Veteran's 2014 surgery was related to carpal tunnel release of the left hand. She explained that this is a neurological condition with the median nerve at the passage through the carpal bones in the wrist. The trigger finger condition of the left hand was due to inflammation of the digital flexor tendon sheath and is an entirely separate condition with fibrotic nodule at the base of the digits involved. The trigger finger condition is a separate condition that developed over time and is not related to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. There was no evidence indicating any complications or unexpected outcomes from the Veteran's left carpal tunnel release. There was also no documentation to support that the condition was due to any not reasonably foreseeable event. 1/19/2017 C&P Event, pp. 1, 16-17. In an August 2017 addendum, the examiner opined that it was less likely than not that the Veteran's trigger finger condition was due to the claimed carpal tunnel release surgery. She explained that the evidence did not indicate that there was a resultant trigger finger condition that developed ten months post carpal tunnel surgery for any reason related to that surgery. There was no documentation of poor outcome in any post-surgical visit, and no evidence or documentation of error or lack of skill. 8/15/2017 C&P Exam, p. 5. The Board concludes that entitlement to compensation for trigger fingers of the left hand under the provisions of 38 U.S.C. § 1151 is not supported by the evidence. The Veteran's claim fails for two reasons. First, the evidence does not show that his trigger fingers were caused by the August 2014 carpal tunnel release surgery. The record shows this disability did not manifest until ten months after the surgery in question. The January 2017 VA examiner explained that the trigger fingers have a cause that is unrelated to the nerve that is treated during carpal tunnel surgery. The only opinion to the contrary is that of the Veteran, who states he was told by VA personnel that trigger fingers sometimes occur after carpal tunnel release. However, there is no mention of this phenomenon in the Veteran's extensive treatment records for the trigger fingers, and it is contradicted by the only firsthand opinion of record. Second, even if the trigger fingers were related to the carpal tunnel release surgery, the January 2017 examiner opined that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. She also opined there was no documentation to support the condition was due to any not reasonably foreseeable event. The only opinion of record that relates the trigger fingers to the August 2014 surgery is that of the Veteran. However, a layman without medical training such as the Veteran who is commenting on events not visible to the naked eye would not normally be competent to provide an opinion regarding the etiology of this disability. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The preponderance of the evidence is against the claim and entitlement to compensation under 38 U.S.C. § 1151 is not established. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for degenerative disc disease of the lumbar spine, evaluated as 20 percent disabling prior to December 7, 2009 and 40 percent disabling from that date is denied. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity, rated as 20 percent disabling prior to February 8, 2011 is denied. Entitlement to a 40 percent rating, but no more, for peripheral neuropathy of the right lower extremity from February 8, 2011 to May 17, 2011 is granted. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity, evaluated as 40 percent disabling from May 18, 2011 is denied. Entitlement to an increased rating for peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling from December 7, 2009 to April 29, 2013; 20 percent disabling from April 30, 2013 to December 16, 2014; and 40 percent disabling from December 17, 2014 is denied. Entitlement to a total rating based on individual unemployability due to service connected disabilities prior to September 14, 2014 to include on an extraschedular basis is denied. Entitlement to compensation under 38 U.S.C. § 1151 for trigger finger of the left hand is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs