Citation Nr: 21071490 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-07 457 DATE: November 30, 2021 ORDER Entitlement to an initial disability rating higher than 10 percent for degenerative arthritis of the lumbar spine with spondylosis and thoracolumbar strain prior to July 1, 2016, is denied. Entitlement to a disability rating higher than 20 percent for degenerative arthritis of the lumbar spine with spondylosis for thoracolumbar strain beginning July 1, 2016, is denied. Entitlement to an initial disability rating higher than 10 percent for radiculopathy of the right sciatic nerve prior to April 6, 2021, is denied. Entitlement to a disability rating higher than 20 percent for radiculopathy of the right sciatic nerve beginning April 6, 2021, is denied. Entitlement to an initial disability rating higher than 10 percent for radiculopathy of the left sciatic nerve prior to April 6, 2021, is denied. Entitlement to a disability rating higher than 20 percent for radiculopathy of the left sciatic nerve beginning April 6, 2021, is denied. Entitlement to a total disability rating for individual unemployability (TDIU) on an extraschedular basis prior to July 1, 2016, is denied. FINDINGS OF FACT 1. For the period prior to July 1, 2016, the lumbar spine disability was manifested by complaints of pain, stiffness, and some limitation of motion, but was not productive of forward flexion of the thoracolumbar spine greater than 30 degrees but less than 60 degrees; combined range of motion of not more than 120 degrees, or the functional equivalent thereto; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; ankylosis or functional ankylosis; or incapacitating episodes as defined by VA. 2. For the period beginning July 1, 2016, the lumbar spine disability was manifested by complaints of pain, stiffness, spasms, and tenderness, but has not been productive of forward flexion of the thoracolumbar spine of 30 degrees, or the functional equivalent thereto; favorable ankylosis of the entire thoracolumbar spine, including any functional ankylosis; or incapacitating episodes as defined by VA. 3. For the period prior to April 6, 2021, the Veteran's service-connected right leg radiculopathy is manifested by mild incomplete paralysis of the right sciatic nerve; moderate paralysis of the sciatic nerve is not shown. 4. For the period beginning April 6, 2021, the Veteran's service-connected right leg radiculopathy is manifested by moderate incomplete paralysis of the right sciatic nerve; moderately severe or severe paralysis of the sciatic nerve is not shown. 5. For the period prior to April 6, 2021, the Veteran's service-connected left leg radiculopathy is manifested by mild incomplete paralysis of the left sciatic nerve; moderate paralysis of the sciatic nerve is not shown. 6. For the period beginning April 6, 2021, the Veteran's service-connected left leg radiculopathy is manifested by moderate incomplete paralysis of the left sciatic nerve; moderately severe or severe paralysis of the sciatic nerve is not shown. 7. For the period prior to July 1, 2016, the most probative evidence does not support a finding that the Veteran was unable to secure and maintain substantially gainful employment solely due to his service-connected disabilities. CONCLUSIONS OF LAW 1. For the period prior to July 1, 2016, the criteria for a disability rating higher than 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. For the period beginning July 1, 2016, the criteria for a disability rating higher than 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. 3. For the period prior to April 6, 2021, the criteria for an initial rating higher than 10 percent rating for radiculopathy of the right sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. For the period beginning April 6, 2021, the criteria for a rating higher than 20 percent for radiculopathy of the right sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. For the period prior to April 6, 2021, the criteria for an initial rating higher than 10 percent rating for radiculopathy of the left sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 6. For the period beginning April 6, 2021, the criteria for a rating higher than 20 percent for radiculopathy of the left sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 7. The criteria for entitlement to a TDIU on an extraschedular basis for the period prior to July 1, 2016, have not been met. 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1958 to February 1961. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a VA Regional Office (RO). Most recently, this issue was before the Board in November 2020. At that time, the Board remanded the claims for additional evidentiary development. As will be discussed in more detail below, the Board finds that there has been substantial compliance with the November 2020 remand directives. See Stegall v. West, 11 Vet. Appl 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusions 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, 780 F. 3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21, Vet. App. 545, 552 (2008). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and §4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by §4.40 and §4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Court recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg, 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Lumbar Spine During the appeal period, the Veteran's lumbar spine disability was rated 10 percent disabling prior to July 1, 2016, and 20 percent disabling thereafter pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a), Diagnostic Codes 5235-5242. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Notably, during the appeal period, the Veteran's degenerative arthritis has been manifested by a bulging disc, which is a form of intervertebral disc syndrome (IVDS). Thus, the Veteran could potentially be awarded a higher rating under Diagnostic Code 5243, which provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. However, based on the entirety of the record, there is no evidence of incapacitating episodes as defined by VA regulation. For reference, incapacitating episodes are a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. There are no periods of bed rest prescribed by a physician for any time during the appeal period (excluding periods of convalescence). The Veteran does not contend otherwise. The Board observes that VA recently revised Diagnostic Code 5242 to encompass "degenerative arthritis, degenerative disc disease other than IVDS" while revising Diagnostic Code 5243 as IVDS only when there is disc herniation with compression and/or irritation of the adjacent nerve root. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA considers these non-substantive changes which clarify the meaning of IVDS. See 82 Fed. Reg. 35719, 35720 (Aug. 1, 2017). As such, the Board finds that this non-substantive change does not require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Turning to the facts of the case, the Veteran filed a service connection claim for a low back disability in December 2014. Contemporaneous treatment records document the Veteran's reports of dull pain and stiffness in the lumbar spine, for which he used over-the-counter medication to alleviate his symptoms. X-rays of the Veteran's lumbar spine revealed degenerative disc disease most prominent at levels L5-S1. At the June 2015 VA examination, the examiner diagnosed chronic thoracolumbar strain, osteoarthritis of the lumbar spine with degenerative disc disease, and lumbar spondylosis. The Veteran reported constant daily pain, rated 8/10 in severity, along with tenderness, stiffness, weakness, and easy fatigue. He used over-the-counter medication along with transcutaneous electrical nerve stimulation (TENS) and hot/cold packs for relief. Functionally, the Veteran stated that his pain made it difficult for him to sleep and the stiffness impaired his ability to put on his shoes and socks. Range-of-motion testing revealed full range of motion in all directions, with pain on movement. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional limitation of motion or function. There was evidence of tenderness and pain described as bilateral infrascapular/paraspinal. There was no evidence of guarding, muscle spasms, or atrophy and muscle strength was within normal limits. He occasionally used a cane to help ambulate. His posture and gait were within normal limits. Based on this examination, the RO granted service connection for the lumbar spine disability and assigned a 10 percent disability rating based on painful movement with full range of motion. See July 2015 Rating Decision. In subsequent treatment records, the Veteran reported occasional episodes of back pain; he took acetaminophen when needed. At the August 2016 VA examination, the Veteran reported constant pain in the lumbar spine. He experienced flare ups of pain when walking or standing on hard surfaces and when bending over to put on his socks and shoes. Range of motion testing revealed forward flexion to 45 degrees and extension to 20 degrees. The examiner observed pain upon examination but found that the pain did not result in or cause functional loss. There was also evidence of pain with weightbearing. The Veteran was not able to perform repetitive use testing due to severe pain. The examiner also found that pain, weakness, and lack of endurance caused additional functional loss during repetitive use and flare ups. There were muscle spasms and localized tenderness present but neither resulted in abnormal gait or abnormal spinal contour. The Veteran occasionally used a cane due to his pain. Based on this examination, the RO increased the Veteran's disability rating to 20 percent, effective July 1, 2016, the date of his increased rating claim. See October 2016 rating decision. Subsequently, treatment records from 2017 to 2019 document the Veteran's continued lumbar spine pain and stiffness. He used aspirin, stretching, and a TENS unit to alleviate his pain. He declined physical therapy and prescription medication. At the August 2020 VA examination, the Veteran reported having pain when walking and standing on hard surfaces, bending over, sitting too long, and climbing steps. He used over-the-counter medications two to three times per day to alleviate his pain. The Veteran also reported daily flare ups of moderate to severe back pain precipitated by yard work, driving, and shopping. His flare ups lasted several days or longer and were alleviated by rest and over-the-counter pain medication. Range of motion testing revealed forward flexion to 45 degrees and extension to 20 degrees. The examiner observed pain upon examination in all directions that caused functional loss along with pain with weightbearing and non-weightbearing. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of motion or function. The examiner found that with repetitive use over time and during flare ups, pain would cause an additional 5 degrees in limitation of motion in forward flexion and extension. The examiner also found that while muscle spasms of the spine were present, such spasms did not result in abnormal gait or spinal contour. He occasionally used a cane for support and ambulation. Subsequent treatment records reflect that the Veteran continued to experience back pain. He used a TENS unit, over-the-counter medications, and heat to treat his back pain. With respect to the period prior to July 1, 2016, the Board finds that a rating higher than 10 percent is not warranted. In order to warrant a higher rating, there must be either limitation of forward flexion of the lumbar spine between 30 to 60 degrees, combined range of motion of the thoracolumbar spine of 120 degrees or less, or the functional equivalent thereto. In this case, the objective medical evidence prior to July 1, 2016, which consists of physical evaluations, demonstrates full range of motion of the lumbar spine. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, prior to July 1, 2016, there is no lay or medical evidence to suggest that the functional equivalent of forward flexion of the lumbar spine was limited to 60 degrees or less or that the combined range of motion of the thoracolumbar sine was not greater than 120 degrees. The Veteran maintained a full, albeit painful, range of motion of the spine. While he described some difficulty with putting on his shoes and socks, such impairment fails to rise to the level contemplated by a higher 20 percent rating. On this record, the Veteran was able to maintain full range of motion with repetitive use of the spine and there was no evidence of guarding, muscle spasms, abnormal gait, or abnormal spinal contour. Consequently, a rating higher than 10 percent prior to July 1, 2016, is not warranted. For the period beginning July 1, 2016, the Board finds that a rating higher than 20 percent is not warranted. During this time, the Veteran's lumbar spine disability was manifested by pain, stiffness, spasms, and functional limitations, along with forward flexion to 35 degrees and extension to 20 degrees at worst. In order to be awarded a higher rating pursuant to Diagnostic Code 5242, there must be either forward flexion to 30 degrees or less or ankylosis of the entire thoracolumbar spine, which is not shown on this record. Even when considering the functional impairment manifested beyond the objective range of motion findings, an increased rating is not warranted. At the VA examinations, the Veteran was able to perform repetitive use testing. Even when considering the additional limitation in motion and function caused by pain with repetitive use and during flare ups, such additional limitation is not functionally equivalent to forward flexion limited to 30 degrees or favorable ankylosis. Although the Veteran's disability did result in some functional impairment, such as difficulty lifting, standing, and walking, the Board finds that such impairment did not more nearly approximate that which is contemplated under a higher 40 percent rating. Accordingly, the Board finds that a 20 percent rating for the lumbar spine disability is appropriate for the period beginning July 1, 2016. A rating higher than 20 percent during this period is not warranted. The Board has considered the lay statements of record, in which the Veteran and other lay witnesses attest to the symptoms, severity, and impairment attributable to the Veteran's low back disability. The Board finds that the Veteran's symptoms and functional impairment are adequately contemplated by the currently assigned ratings during the appeal period. Prior to July 1, 2016, while the Veteran had difficulty bending over and putting on his shoes and socks do to pain, the functional impairment caused by pain is encompassed in the 10 percent rating. Beginning July 1, 2016, the Veteran's reported limitation in walking and standing, sleep impairment, and difficulty performing chores is addressed in the currently assigned 20 percent rating. As the lay statements do not establish impairment beyond the currently assigned staged ratings, such statements are insufficient to support a higher rating. The Board further observes that the record reflects "staged" ratings for a worsening of disability over the appeal period. The Board has reviewed the effective dates of awards assigned and cannot factually ascertain from the lay and medical evidence that the Veteran met the criteria for a rating greater than 10 percent for the period prior to July 1, 2016, or a rating greater than 20 percent for the period beginning July 1, 2016. In sum, the Board finds that the Veteran's lumbar spine disability was 10 percent disabling prior to July 1, 2016, and 20 percent disabling thereafter. Accordingly, the claims for higher staged ratings are denied. Sciatic Nerves The Veteran's service-connected radiculopathy of the left and right sciatic nerves were rated 10 percent disabling prior to April 6, 2021, and 20 percent thereafter pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. Diagnostic Code 8620 refers to neuritis of the sciatic nerve while Diagnostic Code 8720 refers to neuralgia of the sciatic nerve. In rating 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, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, a disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. Descriptive words such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology 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 arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.124a. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124. Turning to the facts of the case, the Veteran filed a claim for benefits in July 2016. At the August 2016 VA examination, the examiner diagnosed bilateral radiculopathy evidenced by mild incomplete paralysis of the sciatic nerves. Upon examination, there was no evidence of muscle atrophy and the Veteran demonstrated normal muscle strength upon flexion and extension in the bilateral lower extremities. While the Veteran's deep tendon reflexes were normal, there was some decreased sensation to light touch in the bilateral lower legs, ankles, feet, and toes. The examiner also noted the presence of moderate constant pain, mild numbness, and mild dysesthesias. The Veteran reported that his pain made it difficult for him to walk or stand. Based on this examination, the RO granted service connection for bilateral lower extremity radiculopathy and assigned a 10 percent disability rating for each leg. See October 2015 Rating Decision. The Veteran timely appealed. At the August 2020 VA examination, the Veteran demonstrated some mild pain and numbness in the right lower extremity; he denied any symptoms of the left leg. While muscle strength and reflexes were normal in both lower extremities, there was some decreased sensation in the right lower leg, ankle, foot, and toes. There was no evidence of muscle atrophy and straight leg testing was negative in both legs. The examiner diagnosed mild incomplete paralysis of the right lower extremity and found that the left lower extremity was normal. A March 2021 private EMG revealed normal findings. At the April 2021 VA peripheral nerves examination, the Veteran reported experiencing leg pain and stiffness, particularly when sitting and standing on hard surfaces. Functionally, he stated that his pain and stiffness limited the time he could do normal activities and he described partial impairment of physical activities, such as running, jumping, and climbing. He used pain medications and heat to alleviate his pain. Upon examination, the examiner noted the presence of bilateral severe pain and moderate numbness and dysesthesias. He demonstrated normal strength and reflexes bilaterally. While there was no evidence of muscle atrophy, there was some decreased sensation to light touch in the bilateral thighs, knees, lower legs, feet, and toes. The examiner also noted trophic changes in the form of loss of extremity hair. The Veteran's gait was normal. Ultimately, the examiner diagnosed moderate incomplete paralysis of the bilateral sciatic nerves. Upon consideration of the evidence, the Board finds that ratings higher than 10 percent are not warranted for bilateral radiculopathy of the sciatic nerve for the period prior to April 6, 2021. During this period, the Veteran's disability was primarily manifested by pain and numbness, along with some functional impairment. The VA examinations during this time do not show any probative manifestations of at least moderate incomplete paralysis of the bilateral sciatic nerves. The Veteran's symptoms remained consistently indicative of no more than mild incomplete paralysis of the sciatic nerves. The medical evidence reflects that the Veteran's muscle strength and reflexes remained normal. While he endorsed some diminished sensation, there was no atrophy or trophic changes in either extremity. As the Board finds that the frequency, severity, and duration of the Veteran's subjective symptoms with diminished sensation absent moderate objective findings more nearly approximates that which is contemplated by mild incomplete paralysis, ratings higher than 10 percent are not warranted for the period prior to April 6, 2021. For the period beginning April 6, 2021, the Board finds that a rating higher than 20 percent is not warranted for bilateral sciatic nerve radiculopathy. During this period, the Veteran's disability was primarily manifested by pain and numbness. He demonstrated diminished sensation throughout the bilateral legs. While the muscle strength and reflexes remained within normal limits, he demonstrated some trophic changes by the lack of hair on the legs. When considering these objective findings of neuropathy absent atrophy, coupled with the functional impairment to his ability to stand and ambulate, the Board finds that the Veteran's radiculopathy of the bilateral sciatic nerves was manifested by no more than moderate incomplete paralysis for the period beginning April 6, 2021. In so finding the above, the Board has considered the lay statements regarding the severity of the Veteran's radiculopathy and finds that the symptoms described are adequately contemplated by the assigned staged disability ratings. The statements do not present evidence indicative of moderate incomplete paralysis of the bilateral sciatic nerves prior to April 6, 2021 or moderately severe incomplete paralysis of the same thereafter. Given the entire disability picture of the Veteran's radiculopathy of the bilateral sciatic nerves, the Board finds that the severity of the Veteran's symptoms more nearly approximate that which is contemplated by the 10 percent rating criteria prior to April 6, 2021, and 20 percent thereafter. The claims for higher staged ratings are denied. TDIU prior to July 1, 2016 The Veteran seeks TDIU for the period prior to July 1, 2016, claiming that he is unable to work due to his service-connected disabilities. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Here, prior to July 1, 2016, the Veteran was service connected for asbestosis with chronic obstructive pulmonary disease (COPD) and obstructive sleep apnea (OSA), rated 10 percent disabling; degenerative arthritis of the lumbar spine, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and bilateral hearing loss, rated noncompensable. His combined disability evaluation of 30 percent does not meet the schedular requirements of TDIU. Thus, the Board may only consider whether TDIU is warranted on an extraschedular basis. 38 C.F.R. § 4.16(b). The record establishes that the Veteran last worked full time in 2009 in automobile sales. See VA Form 21-8940. His work history also includes insurance sales, retail sales, and real estate sales. See Correspondence received April 22, 2015. In written statements dated in January 2015 and April 2015, the Veteran reported that he stopped working due to worsening pain in his back, knees, legs, and neck. He used a brace on both knees and his back due to pain and stated that his back, knees, and legs caused him to limp and made it difficult to stand on hard surfaces. At the June 2015 VA examination, the examiner noted that the Veteran's lumbar spine disability partially impaired his ability to perform physical aspects of employment such as heavy lifting, pushing, pulling, and carrying. In a December 2019 evaluation report, a private physician opined that the Veteran's service-connected disabilities of lumbar arthritis, tinnitus, hearing loss, asbestosis, and radiculopathy of the bilateral lower extremities have rendered the Veteran unemployable since at least December 2014. Based on the evidence of record, the Board finds that TDIU is not warranted for the period prior to July 1, 2016. The Board recognizes that the Veteran's service-connected disabilities did impact his daily activities during this time. However, the Board finds that the impairment the Veteran described is adequately contemplated under his assigned disability ratings. In order to be awarded TDIU, the record would have to show that the Veteran was unable to maintain gainful employment solely due to his service-connected disabilities, which is not the case here. For the period in question, the evidence discussing employability primarily consists of the Veteran's own lay statements. During that time, the Veteran repeated stated that he stopped working due to both service-connected disabilities and non-service-connected disabilities, to include his knee disability and neck disability. Moreover, while the July 2015 VA examiner noted that the Veteran's lumbar spine partially impaired his ability to perform physical aspects of employment, such an opinion is not sufficient to support a TDIU. The opinion does not establish that the Veteran's spine disability, either alone or coupled with any other service-connected disability, solely prevented employment. Further, this opinion did not discuss any impairment related to the mental aspects of a sales job consistent with the Veteran's employment history. Overall, the Board finds that while there is evidence of impairment, there is no indication that his low back disability, bilateral hearing loss, tinnitus, and asbestosis, alone, prevented him from performing the physical and mental acts required to maintain gainful employment consistent with his educational and vocational history. Van Hoose, 4 Vet. App. at 363. In so finding, the Board acknowledges the December 2019 private report, which found that the Veteran's service-connected disabilities rendered the Veteran unemployable since 2014. However, the Board assigns this opinion little probative value. Notably, the positive opinion is partially based on the impairment caused by the Veteran's radiculopathy of the bilateral lower extremities; however, service connection for the Veteran's radiculopathy was not effective until July 2016. Thus, the positive opinion which encompasses non-service-connected disabilities is not probative as to the issue of entitlement to TDIU prior to July 2016. While the Board does not wish to minimize the nature and extent of the Veteran's overall disability, the evidence of record does not support his claim that his service-connected disabilities alone produced unemployability prior to July 2016. Although they produce some impairment, the evidence does not reflect gainful employment was precluded solely due to the Veteran's service-connected disabilities. As the Veteran has not met his burden of establishing entitlement to TDIU or entitlement to referral for extraschedular consideration, the claim, therefore, must be denied. M. C. WILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.