Citation Nr: 1811536 Decision Date: 02/22/18 Archive Date: 03/06/18 DOCKET NO. 11-29 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for left lower radiculopathy (sciatic) associated with degenerative joint disease of the lumbar spine from March 11, 2009, until October 13, 2011, and 20 percent therefrom. 2. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy (femoral) associated with degenerative joint and disease of the lumbar spine. 3. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy (sciatic) associated with degenerative joint and disease of the lumbar spine. 4. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy (femoral) associated with degenerative joint and disease of the lumbar spine. 5. Entitlement to an initial compensable disability rating for scar associated with degenerative joint and disease of the lumbar spine. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert Chisholm, Attorney ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from March 1972 to March 1975. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from April and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Also on appeal is a May 2017 rating decision adjudicating issues 2-5. That rating decision is currently on appeal before the Board pursuant to 38 C.F.R. § 19.9(c) for the limited purpose of remanding for a statement of the case (SOC). See John v. Shulkin, No. 16-2487, 2018 U.S. App. Vet. Claims LEXIS 116, at *14 (Vet. App. Jan. 31, 2018) (nonprecedential) (J. Bartley) (the Veteran was required to file a notice of disagreement as to a newly assigned, separate evaluation for radiculopathy). In a September 2014 decision, the Board (1) denied a rating in excess of 40 percent for the lumbar spine disability; (2) granted a 20 percent rating for left lower extremity radiculopathy, effective October 14, 2011, (3) denied a rating in excess of 10 percent prior to that date; and (4) denied a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order of June 2015, the Court granted a June 2015 joint motion of the Veteran's representative before the Court and VA's General Counsel for remand of the matter for action consistent with the terms of the joint motion covering issues with which the Veteran still disagreed; with the remaining issues dismissed. Upon return from the Court, the Board remanded the case in August 2015 for additional development. Upon remand, the RO issued a supplemental statement of the case (SSOC) in April 2017 adjudicating the issues remanded by the Board, plus the issues adjudicated in the May 2017 rating decision and an additional issue involving an increased rating for degenerative joint and disease of the lumbar spine. As indicated, an appeal has not been perfected as to the issues decided in the May 2017 rating decision, and an SSOC shall not be issued to respond to a notice of disagreement on newly appealed issues. Therefore, those issues were not subject to review in the SSOC. See 38 C.F.R. § 19.31(a); see also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). With regard to the lumbar spine issue addressed in the April 2017 SSOC, the issue is no longer on appeal as it was abandoned at the Court. Subsequent to the SSOC, in June 2017, the Veteran's attorney filed a statement and additional evidence identifying this issue as a "pending appeal." However, that issue is not a pending appeal at this time as the Board previously denied an increased rating for the disability in September 2014. On appeal to the Court, the Veteran abandoned the issue. Since that time, the RO has not issued a new rating decision addressing the issue. Therefore, the issue is no longer within the scope of this appeal. See Cacciola v. Gibson, 27 Vet. App. 45, 57 (2014). In June 2017 and August 2017, the Veteran's representative submitted additional evidence. He waived initial RO consideration of the additional evidence in December 2017. See 38 C.F.R. § 20.1304(c). The issues of entitlement to an increased rating for left lower extremity radiculopathy (sciatic) and TDIU since September 2016 are decided herein. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left lower radiculopathy (sciatic) associated with degenerative joint disease of the lumbar spine has been manifested by a moderate disability level, but not higher. 2. Since September 1, 2016, the Veteran's combined service-connected disability picture is shown to prevent him from obtaining and maintaining all forms of substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for assignment of an initial 20 percent rating, but no higher, for left lower radiculopathy (sciatic) associated with degenerative joint disease of the lumbar spine are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8520 (2017). 2. The criteria for the assignment of a total rating based on individual unemployability due to service-connected disability are met since September 1, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Sciatic Radiculopathy - Left Lower Extremity The Veteran is seeking a higher initial rating for left lower radiculopathy (sciatic) associated with degenerative joint disease of the lumbar spine. The appeal period now before the Board begins in March 2009, which is when a separate compensable disability rating went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a 10 percent rating prior to October 12, 2011, and a 20 percent rating since that date. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's radiculopathy has been assigned a disability rating under Diagnostic Code (DC) 8520 of 38 C.F.R. § 4.124a. The applicable rating schedule is set forth as follows: 8520 Paralysis of: Complete; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost 80 Incomplete: Severe, with marked muscular atrophy 60 Moderately severe 40 Moderate 20 Mild 10 8620 Neuritis. 8720 Neuralgia. Where the disability at issue is lower extremity radiculopathy associated with a service-connected thoracolumbar disability and the evidence does not specify the nerve involvement, the disability is to be evaluated under DC 8520. VBA Manual M21-1, III.iv.4.N.4.g., Determining Individual Nerves Affected in the Upper and Lower Extremities When Evaluating Disabilities; see also M21-1, III.iv.4.A.4.a., Evaluating Manifestations of Spine Diseases and Injuries. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120; see also 38 C.F.R. § 4.123, 124. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Introductory Note. The table below provides general guidelines for each level of incomplete paralysis of the upper and lower peripheral nerves. Degree of Incomplete Paralysis Description Mild * As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for SC purposes. * In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. * A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate?? * Moderate is the maximum evaluation reserved for the most significant cases of sensory-only impairment (38 CFR 4.124a). o Symptoms will likely be described by the claimants and medically graded as significantly disabling. o In such cases a larger area in the nerve distribution may be affected by sensory symptoms. * Other sign/symptom combinations that may fall into the moderate category include o combinations of significant sensory changes and reflex or motor changes of a lower degree, or o motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. * Moderate is also the maximum evaluation that can be assigned for o neuritis not characterized by organic changes referred to in 38 CFR 4.123, or o neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 CFR 4.124). Moderately Severe * The moderately severe evaluation level is only applicable for involvement of the sciatic nerve. * This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 CFR 4.123. * Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. * Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 CFR 4.124a, DC 8520. Severe * In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. * Trophic changes may be seen in severe longstanding neuropathy cases. * For the sciatic nerve (38 CFR 4.124a, DC 8520) marked muscular atrophy is expected. * Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. * Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 CFR 4.123). See M21-1, III.iv.4.G.4.c, Assigning Level of Incomplete Paralysis; see also Kowalew v. McDonald, No. 14-0869, 2015 WL 3954095, at *4 (Vet. App. June 30, 2015) (The M21 creates statements of policy, which, when they provide context to a claim, cannot be ignored by the Board). Furthermore, in cases where a peripheral nerve disability is only manifested by sensory impairment, to make a choice between mild and moderate, consider the evidence of record and the following guidelines: The mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuous; assigned a lower medical grade reflecting less impairment; and/or affecting a smaller area in the nerve distribution. The moderate level of evaluation should be reserved for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuous; assigned a higher medical grade reflecting greater impairment; and/or affecting a larger area in the nerve distribution. This does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. VBA Manual M21-1, III.iv.4.G.4.b, Guidance on Evaluating Completely Sensory Peripheral Nerve Impairment. Combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. See 38 C.F.R. § 4.124, DC 8719, Note. B. Discussion In this case, the Board finds that a 20 percent rating is warranted prior to October 2011 as the evidence demonstrates a moderate disability picture involving significant sensory, reflex, and motor changes with weakness. The current 20 percent rating was assigned by the Board based on the date of a September 2011 VA examination. (As the parties to the JMR noted, the Board misidentified the September 2011 VA examination as having been conducted in October 2011.) An effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); see also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); VAOPGCPREC 12-98. Accordingly here, upon further review of the evidence, particularly in light of the points raised in the JMR, the Board finds that the 20 percent disability level had already manifested by the time of the September 2011 VA examination and had manifested throughout the appeal period. The September 2011 VA examination showed severe pain radiating to the left ankle with decreased strength and leg weakness. Reflex examination was 2+, which was identified as "normal." However, the sensory examination showed decreased light touch on the left with burning/tingling sensation. A motor examination for knee flexion and extension was 4/5, which was identified as active movement against some resistance. The Board finds that this examination is consistent with a moderate degree of disability as it shows sensory changes and motor changes of a lower degree with weakness. See M21-1, III.iv.4.G.4.c. Earlier, at a March 2009 VA spine examination, the motor examination was again 4/5, but the reflex examination was 1+. This was identified as hypoactive. Similar test results were shown at VA in December 2010 and June 2011. This evidence, which is consistent with the findings of the September 2011 VA examination, indicates a moderate disability picture. See Swain, 27 Vet. App. at 224. Accordingly, the 20 percent rating is warranted throughout the appeal period. The Board notes that the September 2011 VA examiner identified the affected nerve as the external cutaneous nerve of thigh. Under DC 8529, regarding this nerve, the maximum rating assignable for any level of severity, including severe complete involvement, is 10 percent. The Board finds that retaining the disability rating under DC 8520 is more favorable to the Veteran under these circumstances. Although the September 2011 VA examination does not identify sciatic (or any other) nerve involvement, the remaining evidence does not identify the nerve involved. Nor does the evidence distinguish the effects of any different nerve involvement prior to the September 2016 VA examination. See Mittleider, 11 Vet. App. at 182. Under such circumstances, the disability should be rated under DC 8520. See M21-1, III.iv.4.A.4.a. Therefore, the Board will assign a 20 percent rating under DC 8520. The next higher, 40 percent rating is not warranted, as a moderately severe disability picture involving motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability. See M21-1, III.iv.4.G.4.c. A September 2016 VA examination revealed sharp pain with severe symptoms in the left lower extremity involving severe paresthesias and/or dysesthesias, but no pain or numbness. Muscle strength testing was 4/5 for knee extension and 3/5 for ankle plantar flexion and ankle dorsiflexion. Reflex examination was 1+ throughout. Sensory examination was decreased. There were also trophic changes involving loss of extremity hair and smooth shiny skin. Functionally, the Veteran had an unsteady gait with regular use of a cane and occasional use of a walker. The VA examiner graded the Veteran's disability level as mild. This September 2016 VA examination indicates some changes from the earlier evidence. First, the muscle strength testing of 3/5 was changed from the earlier testing showing 4/5. Second, there were also trophic changes, which can be indicative of a higher disability level. See M21-1, III.iv.4.G.4.c. However, the remaining medical findings were materially the same, and there was no muscle atrophy. Moreover, the VA examiner graded the disability as medically mild. (Although this grade might indicate that the 20 percent disability level, reflecting a moderate disability, is no longer warranted, the Board does not find that the 20 percent rating should be disturbed. See, e.g., Murphy v. Shinseki, 26 Vet. App. 510, 513 (2014).) Accordingly, this evidence is not consistent with a moderately severe disability level. As the JMR points out, a November 2011 private opinion from the Veteran's chiropractor demonstrates "significant left femoral nerve radiculopathy manifesting in constant pain and paresthesia of the left anterior thigh." This private examiner did not identify any involvement of the sciatic nerve, and the Veteran is currently assigned a separate disability rating for femoral involvement under DC 8526, regarding the posterior tibial nerve. Accordingly, this assessment may not be considered in the context of rating the sciatic component of the disability. See Mittleider, 11 Vet. App. at 182. In conclusion, when reconciling the various medical reports into a consistent picture, it is found that the Veteran's disability picture is most consistent with a 20 percent disability level under DC 8520 throughout the appeal period. No higher or earlier increased disability ratings are warranted. See Hart, 21 Vet. App. at 505; Fenderson, 12 Vet. App. at 126-27. This is an appeal of the initial ratings assigned, which means that a higher rating may not be assigned any earlier than March 2009, which is the effective date for the award of service connection for the disability. See, e.g., Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2)). The Board has resolved all reasonable doubt in the Veteran's favor in reaching all determinations. II. TDIU The Veteran also maintains that a TDIU is warranted. In his June 2009 VA Form 21-8940, the Veteran wrote that he last worked full-time and became too disabled to work in November 1998, which is also when his disability first affected full-time employment. The service-connected disabilities preventing him from securing or following any substantial gainful employment were degenerative joint disease of the lumbar spine. In an updated VA Form 21-8940 from September 2015, the Veteran identified all service-connected disabilities as preventing employment. In a September 2017 appellate brief, the Veteran's attorney clarified that the TDIU was based on the aggregate (combined) effects of all service-connected disabilities. A. Applicable Law Under the applicable criteria, total disability ratings based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 4.16(a). For the purpose of meeting these schedular criteria, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. Id. Thus, full consideration must be given to "the effect of combinations of disability," as directed by 38 C.F.R. § 4.15. Accordingly, the aggregate effect of multiple service-connected disabilities must be addressed. Geib v. Shinseki, 733 F.3d 1350, 1353-54 (Fed. Cir. 2013). Unlike the percentage ratings in part 4 of title 38 of the Code of Federal Regulations, which are based on the average impairment in earning capacity caused by the service-connected disability, entitlement to TDIU is based on an individual's particular circumstances. It is also the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director's decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). A personalized and individualized assessment must be made on the basis of the medical and nonmedical evidence. Todd v. McDonald, 27 Vet. App. 79 (2014). The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. Geib, 733 F.3d at 1354. In doing so, the Board must consider the evidence and expressly state whether the Veteran would be able to obtain or maintain a substantially gainful occupation-or, put another way, whether the Veteran is capable of more than marginal employment. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). B. Discussion In this case, the Board finds that a TDIU is warranted from September 2016. The Veteran is currently service-connected for (1) degenerative joint and disease of the lumbar spine rated as 40 percent from January 2009; (2) left lower extremity radiculopathy associated with degenerative joint and disease of the lumbar spine rated as 20 percent from March 2009 to October 2011; (3) left lower extremity radiculopathy (sciatic) associated with degenerative joint and disease of the lumbar spine rated as 20 percent from October 2011; (4) right lower extremity radiculopathy (sciatic) associated with degenerative joint and disease of the lumbar spine rated as 10 percent from September 2016; (5) right lower extremity radiculopathy (femoral) associated with degenerative joint and disease of the lumbar spine rated as 10 percent from September 2016; (6) left lower extremity radiculopathy (femoral) associated with degenerative joint and disease of the lumbar spine rated as 10 percent from September 2016; and (7) scar associated with degenerative joint and disease of the lumbar spine rated as noncompensable. During the appeal period, his combined disability rating was 50 percent from March 2009 and 70 percent from September 2016. Although the Veteran was separately rated for his lumbar spine and lower extremity disabilities, they arose from a common etiology and are therefore considered as one. See 38 C.F.R. § 4.16(a). Therefore, the Veteran's combined disability rating meets the criteria for award of a schedular TDIU because there is one disability rated at 60 percent or more. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Prior to September 2016, the schedular criteria were not met. On this basis, the evidence shows that he was not capable of gaining or retaining substantially gainful employment due to the disabilities since September 2016. A statement from the Veteran's last employer confirms that he was terminated in December 1998. At a September 2011 VA general medical examination, the Veteran was able to walk about 50 feet slowly with a cane and back brace. (A spine-focused examination performed at the same time noted that the Veteran was unable to walk more than a few yards. This discrepancy is not explained.) He could sit for greater than an hour to watch television, use a computer, talk on the phone, or complete his activities of daily living. He had stiffness, pain, weakness, paresthesias, and numbness. His disability caused decreased concentration, mobility, lifting and carrying, strength, and lack of stamina. A September 2016 VA examiner found that the functional impact of the Veteran's disability was back stiffness, pain, and decreased mobility "making it difficult to maintain employment." More recently, the Veteran underwent two private vocational examinations. The first examination, conducted in December 2015, resulted in a conclusion that the Veteran was at least as likely as not unable to secure and follow a substantially gainful occupation due to his service-connected disabilities since 1992. The examiner explained that the Veteran's medication caused blurred vision and feelings of falling/sinking. He also had sitting and standing limitations, which, when combined with his need to frequently lie down throughout the day, would require too much time away from attending to his work that would typically be acceptable in a substantially gainful occupation, including sedentary work. The secondary vocational examination was conducted in July 2017. This examiner likewise found that the Veteran was as likely as not unable to secure and follow substantially gainful employment to include sedentary unskilled employment based on his service-connected lumbar spine and left lower extremity radiculopathy since 1998. The examiner explained that the Veteran's low back and radiculopathy disabilities limited his ability to sit for prolonged periods of time, walk any long distances, stand on hard surfaces longer than a few minutes, or lift more than a few pounds. Therefore, the Veteran would be unable to meet the physical demands of even unskilled, sedentary work. Further, in the examiner's vocational opinion, an employer would not allow an employee to lie down when altering their position from seated to standing or walk for 5 minutes with each postural change. Such restrictions combined with the interruption in concentration due to pain would result in a significant amount of time off-task and would reduce work productivity. Moreover, according to the examiner, the Veteran's pain medication and interrupted sleep would further hinder his ability to concentrate on work tasks because he was often drowsy during the day. He typically had to take a nap in the afternoon, and this time off-task, inability to concentrate, and lack of any productivity would not be tolerated by any employer, even at the sedentary level. The Board finds that this evidence makes it likely that the Veteran would be unable to perform the functional requirements of any sedentary or physical job due to his limited ability to walk; inability to sit for any notable length of time without needing to get up and walk around; and decreased concentration. The private examiners' opinions that the Veteran was unemployable are nondeterminative because it is solely within the Board's adjudicative authority to determine unemployability. See 38 C.F.R. § 4.16(a); Floore v. Shinseki, 26 Vet. App. 376 (2013). Nonetheless, the examiners, together with the VA examiners' assessments, provided a good summary of the Veteran's impairments and the likely impact of those impairments on his ability to function in an occupational environment. The Board, therefore, finds the examiners' assessments probative on this question. They indicate that he would unlikely be able to gain or maintain more than marginal employment consistent with his background, training, and education at any job, whether sedentary or physical. More than marginal work would require a degree of physical functioning needed to carry out the job requirements that has been outside the Veteran's capacity. The Board is unable to conceive of any type of job that would accommodate such functional limitations. See Ortiz-Valles, 28 Vet. App. at 72. Accordingly, the claim is granted from September 2016, when the Veteran met the schedular criteria under § 4.16(a) for assignment of a TDIU. Prior to that date, the Board cannot grant a TDIU without first obtaining an advisory opinion under § 4.16(b) from the Director, Compensation Service. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). ORDER An initial compensable rating of 20 percent, but not higher, for left lower radiculopathy (sciatic) associated with degenerative joint disease of the lumbar spine, is granted. A TDIU since September 1, 2016, is granted. REMAND The claims of entitlement to an initial disability rating in excess of 10 percent for (1) left lower extremity radiculopathy (femoral), (2) right lower extremity radiculopathy (sciatic), (3) right lower extremity radiculopathy (femoral), and (4) scar associated with degenerative joint and disease of the lumbar spine, must be remanded for issuance of an SOC. The claims were granted in a May 2017 rating decision. The Veteran, through his representative, filed a VA Form 21-0958, Notice of Disagreement (NOD), in September 2017. At present, an SOC has not been issued. Under such circumstances, the Board shall remand these claims to the RO with instructions to prepare and issue an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also 38 C.F.R. § 20.201 (in effect since March 24, 2015). Regarding the claim for a TDIU prior to September 1, 2016, the issue must be referred to the Director, Compensation Service, for an advisory opinion as to whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. The Veteran does not meet the schedular criteria for award of a TDIU under § 4.16(a) prior to that date. However, the evidence indicates that he was unemployable during that time period. As such, an advisory opinion is needed. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran an SOC with respect to the claims of entitlement to an initial disability rating in excess of 10 percent for (1) left lower extremity radiculopathy (femoral), (2) right lower extremity radiculopathy (sciatic), (3) right lower extremity radiculopathy (femoral), and (4) scar associated with degenerative joint and disease of the lumbar spine. This issuance should include notification of the need to timely file a substantive appeal to perfect an appeal on the issues. 2. Refer the claim for a TDIU prior to September 1, 2016, to the Director, Compensation Service, for extraschedular consideration as to whether the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to that date. Then, return the matter to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs