Citation Nr: 20043846 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 16-32 784 DATE: June 30, 2020 ORDER Entitlement to a rating in excess of 20 percent for degenerative joint and disc disease of the lumbar spine, status post partial laminectomy, prior to March 14, 2016, and a rating in excess of 40 percent for degenerative joint and disc disease of the lumbar spine, status post partial laminectomy since March 14, 2016, is denied. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is denied. Entitlement to a rating of 40 percent, but not higher, for left lower extremity radiculopathy is granted, subject to the law and regulations governing payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to March 14, 2016, the Veteran’s lumbosacral spine does not exhibit forward flexion of 30 degrees or less or ankylosis. 2. Since March 14, 2016 the Veteran’s lumbar spine did not exhibit ankylosis. 3. The Veteran’s right lower extremity radiculopathy exhibits symptoms that are mild in nature. 4. The Veteran’s left lower extremity radiculopathy exhibits symptoms that are moderately severe in nature. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for degenerative joint and disc disease of the lumbar spine, status post partial laminectomy, prior to March 14, 2016, and a rating in excess of 40 percent for degenerative joint and disc disease of the lumbar spine, status post partial laminectomy since March 14, 2016 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 3. The criteria for entitlement to a rating of 40 percent, but not higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1981 to December 1999. This matter comes before the Board of Veterans’ Appeals (Board) from January 2015, March 2015, April 2015, and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a hearing before a Decision Review Officer at the RO regarding the lumbar spine disability and associated radiculopathy. The transcript of that hearing has been associated with the Veteran’s claims file. In November 2018, the case came before the Board. The Board denied entitlement to increased ratings for hypertension, erectile dysfunction, herpes simplex, sinusitis, right foot hallux valgus, status-post bunion surgery, and left foot hallux valgus, status-post bunion surgery. In addition, the Board found the reductions for the Veteran’s left lower extremity radiculopathy and lumbar spine conditions were improper and restored the Veteran’s disability ratings. Moreover, the Board remanded the Veteran’s claims for entitlement to increased ratings for a lumbar spine disability and bilateral lower extremity radiculopathy in order to obtain an additional examination. Lastly, the Board remanded the Veteran’s TDIU claim because it was inextricably intertwined with the Veteran’s remaining claims. In June 2020, the Veteran’s attorney submitted a motion to withdraw as counsel and indicated that she was no longer the Veteran’s attorney. Pertinent regulation states that after the Agency of Original Jurisdiction (AOJ) has certified an appeal to the Board, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. Good cause, as relevant to this appeal, includes failure of the appellant to cooperate with proper preparation and presentation of the appeal or other factors which make the continuation of representation impossible, impractical, or unethical. 38 C.F.R. § 20.608(b)(2). Here, the attorney submitted a withdrawal after certification of the appeal to the Board and did not provide good cause reasons for doing so. The Veteran’s attorney has not made an appropriate motion to withdraw representation, as prescribed by 38 C.F.R. § 20.608, and the Veteran has not appointed a new representative. Thus, the attorney remains the appointed representative for the purposes of deciding this appeal. For purposes of this decision, the Veteran’s temporary evaluation of 100 percent for his lumbar spine disability assigned from February 26, 2015 is not before the Board. Increased Rating The Veteran contends that his disabilities warrant increased ratings throughout the course of the appeal. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 20 percent for degenerative joint and disc disease of the lumbar spine, status post partial laminectomy, prior to March 14, 2016. The Board notes that VA received the Veteran’s claim for an increased rating on September 29, 2014. The Board notes that the Veteran’s condition was rated as 20 percent disabling during this period of the appeal. The Veteran was assigned a 20 percent rating under Diagnostic Code 5242. Arthritis under Diagnostic Code 5003 is to be rated on limitation of motion of the affected part as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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 DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasm, guarding or localized tenderness resulting in abnormal gait or an abnormal spinal contour. A 40 percent rating is warranted for forward flexion of the lumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent, the maximum available, is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Note (2) of the General Rating Formula provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5242. As to a current diagnosis, the Board notes that the Veteran’s disability has been diagnosed as lumbar partial laminectomy with degenerative joint disease. As to the available lay statements, the Board notes that the Veteran’s girlfriend reported that the Veteran’s back condition has limited his mobility. The Veteran’s girlfriend also stated that the Veteran experiences pain. The Board further notes that the Veteran has reported issues with pain and lost range of motion. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in January 2015. Upon examination, the examiner indicated that the Veteran exhibited forward flexion to 70 degrees with no evidence of painful motion, extension to 10 degrees with no objective evidence of painful motion, right lateral flexion to 30 degrees or greater with no objective evidence of painful motion, left lateral flexion to 20 degrees with painful motion at degrees, and right lateral rotation to 30 degrees or greater with no objective evidence of painful motion. The examiner indicated that the Veteran did not have additional limitation of range of motion following repetitive use testing. The examiner indicated that the Veteran did not exhibit guarding or muscle spasm of the thoracolumbar spine. The examiner indicated that the Veteran did not experience flareups. Lastly, the examiner indicated that the Veteran did not exhibit signs of IVDS or ankylosis. The Board has also reviewed the Veteran’s medical history. After a review of these records, the Board finds that these records do not show that the Veteran’s lumbar spine disability exhibits lost range of motion greater than what was reported at his VA examination. Moreover, the Veteran’s records do not show any evidence of IVDS or ankylosis. In sum, the Board finds that the Veteran’s condition has remained consistent during this period of the appeal and an increased rating is not warranted. After a review of the record, the Board finds that the most probative evidence of record are the results of the Veteran’s VA examination. This examination did not show that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less nor did this examination show that the Veteran’s spine exhibited any signs of ankylosis. Moreover, the record did not reflect that the Veteran had incapacitating episodes that required physician prescribed bedrest. Lastly, the Board has considered the Veteran’s reports of pain on motion; however, the Board does not find that the Veteran’s symptomatology, even when considering pain on motion, demonstrates that his condition results in lost range of motion which warrants a rating in excess of 20 percent. Specifically, the Board notes that the Veteran’s January 2015 VA examination showed that the Veteran did not have any additional lost range of motion following repetitive testing. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 20 percent for his lumbar spine disability prior to March 14, 2016, must be denied. 2. Entitlement to a rating in excess of 40 percent for degenerative joint and disc disease of the lumbar spine, status post partial laminectomy since March 14, 2016 The Board notes that the Veteran’s condition was increased to 40 percent effective from March 14, 2016. As to a current diagnosis, the Board notes that the Veteran’s condition has been diagnosed as lumbar partial laminectomy with degenerative joint disease. As to the available lay statements, the Board notes that the Veteran’s girlfriend reported that the Veteran’s back condition has limited the Veteran’s mobility. The Veteran’s girlfriend also stated that the Veteran experiences pain. The Board further notes that the Veteran has reported issues with pain and lost range of motion. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in March 2016. The Veteran reported that he has bilateral lumbar pain, increased with bending, lifting, standing and walking. He stated that he continues to have pain in the bilateral lower extremities with paresthesias. The Veteran reported no flareups. Upon examination, the examiner indicated that the Veteran exhibited forward flexion 0 to 20 degrees, extension 0 to 0 degrees, right lateral flexion 0 to 10 degrees, left lateral flexion 0 to 10 degrees, right lateral rotation 0 to 15 degrees, and left lateral rotation 0 to 15 degrees. The examiner indicated that there was no additional loss of function or range of motion after three repetitions. The examiner indicated that the Veteran exhibited muscle spasm, localized tenderness, and guarding that resulted in abnormal gait or abnormal spinal contour. The examiner indicated that the Veteran exhibited IVDS; however, the Veteran did not require bed rest prescribed by a physician and treatment by a physician in the past 12 months. Lastly, the examiner indicated that the Veteran did not exhibit ankylosis. In July 2019, the Veteran attended an additional examination. The Veteran reported worsening lower back pain and tightness. The Veteran reported numbness that radiates down his left lower extremity with activities including extensive walking, standing, sitting, bending, and climbing. The Veteran reported that he can’t even bend down due to back pain. The Veteran reported no flareups. Upon examination, the examiner indicated that the Veteran exhibited forward flexion 0 to 35 degrees, extension 0 to 10 degrees, right lateral flexion 0 to 10 degrees, left lateral flexion 0 to 5 degrees, right lateral rotation 0 to 15 degrees, left lateral rotation 0 to 15 degrees. The examiner indicated no additional loss of function or range of motion after three repetitions. Lastly, the examiner indicated that the Veteran did not exhibit IVDS or ankylosis. The Board has also reviewed the Veteran’s medical history. After a review of the Veteran’s medical records, the Board finds that the Veteran’s records do not show that the Veteran exhibits ankylosis. Moreover, the Board finds that the Veteran’s records do not show that his condition exhibited incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In sum, the Board finds that the Veterans’ condition has remained consistent during this period of the appeal and a rating increase is not warranted. The Board has considered a rating in excess of 40 percent; however, the record does not contain any evidence that the Veteran’s spine exhibits signs or symptoms of ankylosis. Moreover, the record does not show that the Veteran’s condition exhibited incapacitating episodes having a total during of at least 6 weeks. The Board has also considered the Veteran’s reports of pain on movement; however, the Veteran’s pain did not result in the development of ankylosis. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 40 percent for his lumbar spine disability since March 14, 2016, must be denied. 3. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy The Board notes that the Veteran is challenging his initial rating assigned for radiculopathy of the right leg. The Veteran’s right lower extremity was granted a 10 percent rating effective from September 29, 2014. His right lower extremity disability is currently awarded a 10 percent rating according to Diagnostic Code 8520. The Board acknowledges that the Veteran’s back disability has affected his sciatic nerve. Diagnostic Code 8520 pertains specifically to the disability at issue and the medical evidence does not support application of an alternate diagnostic code. Radiculopathy of the lower extremities is rated based on the degree of paralysis of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8520. Under this code, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, which contemplates foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated in proportion to the impairment of motor, sensory, or mental function. In rating the Veteran’s peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, and sensory disturbances. 38 C.F.R. § 4.120. The schedule of ratings does not define the terms “moderate” and “severe;” rather than applying a mechanical formula to make a determination, the Board evaluates all of the evidence such that decisions are “equitable and just.” 38 C.F.R. § 4.6. The term “incomplete paralysis,” with respect to nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for “complete paralysis” given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See Id. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating to be assigned for neuralgia, usually characterized by a dull and intermittent pain of typical distribution so as to identify the nerve, will be that equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. As to a current diagnosis, the Board notes that the Veteran’s disability has been diagnosed as bilateral lower extremity radiculopathy involving the sciatic nerve. As to the Veteran’s lay statements, the Board notes that the Veteran has reported that his legs will go numb down to the bottom of his feet. The Veteran also reported that he will experience pain that is ranked as an 8 on a scale to 10. The Board further notes that the Veteran’s girlfriend reported that the Veteran will have difficulty moving his legs. Turning to the medical evidence at hand, the Veteran attended a VA examination in January 2015. Upon examination, the examiner noted that the Veteran’s right lower extremity radiculopathy exhibited mild constant pain, no intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Following the examination, the examiner opined that the Veteran’s condition was mild in nature. In March 2016, the Veteran attended an additional VA examination. Upon examination, the examiner noted that the Veteran’s right lower extremity radiculopathy exhibited no signs of constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and no signs of numbness. Following the examination, the examiner opined that the Veteran’s condition was mild in nature. In July 2019, the Veteran attended an additional VA examination. Upon examination, the examiner noted that the Veteran’s right lower extremity radiculopathy exhibited no signs of constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness. Following the examination, the examiner opined that the Veteran’s right lower extremity was unaffected. The Board has also reviewed the Veteran’s medical history. The Veteran’s records reflect symptoms consistent with the VA examination reports of record and do not demonstrate that his right lower extremity radiculopathy symptoms are worse than what was reported at his VA examinations. In sum, the Board finds that the Veteran’s condition has remained consistent and an increased rating is not warranted. After a review of the record, the Board finds that the most probative pieces of evidence of record are the results of the Veteran’s VA examinations which showed that the Veteran’s symptoms were mild in nature. The Board further notes that the medical examiners in this case have opined that the Veteran’s symptoms were either mild in nature or not present, and there is no evidence of record to the contrary. The Board has considered a rating in excess of 10 percent; however, the evidence of record did not demonstrate that the Veteran’s condition exhibits moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis, or complete paralysis of the sciatic nerve. The Board has also considered the Veteran’s lay statements regarding the severity of his symptomology. However, the Board finds that the Veteran’s reports are currently included in his present rating and do not demonstrate that his condition warrants an increased rating. The Board acknowledges that the Veteran testified that he experienced pain that he described as being an 8 on a scale to 10; however, the Board notes that the Veteran does not receive treatment or therapy for pain of this severity. Moreover, the Board notes that the Veteran did not report this level of pain, nor did the VA examiners find that this level of pain was present, at his VA examinations. Importantly, no medical evidence of record supports that the Veteran experiences pain that is more than mild in nature. Thus, the Board finds that an increased rating based on the Veteran’s report alone is not sufficient to justify an increased rating. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 10 percent for his right lower extremity radiculopathy, must be denied. 4. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy The Board notes that VA received the Veteran’s claim for an increased rating on September 29, 2014. The Veteran’s disability is currently awarded a 20 percent rating according to Diagnostic Code 8520. The Board acknowledges that the Veteran’s back disability has affected his sciatic nerve. Diagnostic Code 8520 pertains specifically to the disability at issue and the medical evidence does not support application of an alternate diagnostic code. As to a current diagnosis, the Board notes that the Veteran’s disability has been diagnosed as bilateral lower extremity radiculopathy involving the sciatic nerve. As to the Veteran’s lay statements, the Board notes that the Veteran has reported that his legs will go numb down to the bottom of his feet. The Veteran also reported that he will experience pain that is ranked as an 8 on a scale to 10. The Board notes that the Veteran also stated that his left leg weakness and numbness makes it difficult to climb stairs. The Board further notes that the Veteran’s girlfriend reported that the Veteran will have difficulty moving his legs. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in January 2015. Upon examination, the examiner indicated that the Veteran’s left lower extremity exhibited severe pain, no intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Following the examination, the examiner opined that the Veteran’s condition was mild in nature. In March 2016, the Veteran attended an additional VA examination. Upon examination, the examiner noted that the Veteran’s left lower extremity radiculopathy exhibited no constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and no numbness. Following the examination, the examiner opined that the Veteran’s condition was mild in nature. In July 2019, the Veteran attended an additional VA examination. Upon examination, the examiner noted that the Veteran’s left lower extremity radiculopathy exhibited no constant pain, no intermittent pain, no paresthesias and/or dysesthesias, and moderate numbness. Following the examination, the examiner opined that the Veteran’s condition was moderate in nature. The Board has also reviewed the Veteran’s medical history. The Board notes that the Veteran’s private treatment records show that he reported pain radiating down the posterior aspect of his left leg down to the lateral aspect of the left foot. The Board also notes that the Veteran’s VA treatment records show he reported that his left leg felt heavier. The Board further notes that the Veteran’s VA treatment records show that he reported difficulty when stepping up on platforms. In sum, the Board finds that the Veteran’s condition has remained consistent and an increased rating is warranted. After a review of the record, the Board acknowledges that the VA examiners have categorized the Veteran’s condition as mild to moderate; however, the Board finds that the Veteran’s reports of pain and numbness demonstrate that the Veteran’s condition is best categorized as moderately severe. In addition, the Board has also considered a higher rating, but the evidence of record does not indicate that the Veteran’s condition exhibits severe incomplete paralysis with marked muscular atrophy or complete paralysis of the sciatic nerve. After weighing all of the evidence, both positive and negative, the Board concludes that this issue is at least in equipoise regarding entitlement to the next higher rating. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board finds that the criteria for a 40 percent rating, but not higher, is warranted for the Veteran’s radiculopathy of the left lower extremity. REASONS FOR REMAND 1. Entitlement to a TDIU Although the Board regrets the additional delay in readjudicating the Veteran’s appeal, for the reasons stated below, a remand is necessary to ensure that VA has fulfilled its duty to assist the Veteran in substantiating his appeal. The Veteran contends that he is unable to work due to his service-connected disabilities. As the Veteran’s TDIU appeal was filed during the pendency of his appeal seeking increased ratings, the appeal period for consideration is from September 29, 2013, to the present. The Veteran does not meet the schedular criteria for a TDIU for the entire appeal period; however, this will change by virtue of the AOJ’s implementation of the Board’s partial allowance. Since procedural development for TDIU appeals differs based on whether the Veteran meets the schedular criteria of 38 C.F.R. § 4.16 (a), the Board must defer readjudication until the partial allowances are implemented by the AOJ. Moreover, additional development needs to be undertaken to confirm the Veteran’s complete occupational history. On the Veteran’s February 2016 VA Form 21-8940, he stated that he had completed two years of college and that his disabilities have prevented him from working since February 2013, when he was property control manager, project manager, and supervisor. However, VA treatment records dated throughout 2016 and 2017 reflect that the Veteran is employed by the Federal Emergency Management Agency (FEMA). It is unclear when the Veteran began working with FEMA and/or whether his occupation with FEMA is marginal or substantially gainful. The AOJ must undertake development on remand to verify these critical matters. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertaining to the Veteran. 2. Request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for his service-connected disabilities. After securing appropriate release(s) from the Veteran, make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. Contact the Veteran and request that he complete and submit an updated VA Form 21-8940, to include a detailed list of his employers (including month/year such employment started and ended with starting and ending hourly wages) since September 29, 2013. 4. Once the completed VA Form 21-8940 is received, the AOJ must contact each identified employer and request such complete and return to VA an employer information form (VA Form 21-4192). Follow-up should be accomplished as appropriate to ensure the necessary information is obtained with regard to each employer identified by the Veteran. 5. The AOJ must request that the Veteran submit documentation relating to his income from September 2013 to the present, such as income tax returns, W-2 forms, 1099 forms, pay statements/stubs and other forms or documents showing income earned or received. The Veteran should be advised of what marginal income means and that this information and evidence is being sought to assist in the determination of whether, as alleged, his income during since September 2013 was marginal as a result of his service-connected disabilities despite him having been employed. Failure to provide information relating to his income, however, could result in the AOJ having insufficient information upon which to render a decision. 6. After completion of the above remand directives and any additional actions which flow from the information gathered above, the AOJ must readjudicate the Veteran’s appeal seeking a TDIU. If the benefit is not granted to the fullest extent, the AOJ must provide the Veteran and his private attorney a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. Scott W. Dale Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.