Citation Nr: 21075041
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 17-31 855
DATE: December 17, 2021

ORDER

Beginning June 5, 2020, entitlement to a 10 percent disability rating, but no higher, for service-connected bilateral hearing loss is granted.

Beginning June 5, 2020, entitlement to a 30 percent disability rating for service-connected residuals of internal derangement of the left knee (hereafter referred to as "left knee instability") is granted.

Beginning June 5, 2020, entitlement to a 20 percent disability rating, but no higher, for the separate award of left knee dislocated semilunar cartilage is granted.

Beginning June 5, 2020, entitlement to a 40 percent disability rating, but no higher, for service-connected degenerative arthritis of the spine (hereafter referred to as a "low back disability") is granted.

Beginning June 5, 2020, entitlement to a 40 percent disability rating, but no higher, for service-connected radiculopathy of the right sciatic nerve is granted.

Beginning June 5, 2020, entitlement to a 40 percent disability rating, but no higher, for service-connected radiculopathy of the left sciatic nerve is granted.

From March 31, 2010, to April 6, 2015, and August 2, 2016, to July 5, 2017, entitlement to total disability based on individual unemployability (TDIU) is granted.

Beginning July 6, 2017, entitlement to TDIU is dismissed.

REMAND

Prior to March 31, 2010, entitlement to TDIU is remanded.

FINDINGS OF FACT

1. Beginning June 5, 2020, the Veteran's better ear (right) manifests level II hearing impairment, and his worse ear (left) manifests level V hearing impairment.

2. Beginning June 5, 2020, the Veteran's service-connected left knee manifests severe instability.

3. Beginning June 5, 2020, the Veteran's service-connected left knee manifests dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.

4. Beginning June 5, 2020, the Veteran's service-connected low back disability manifests limitation of forward flexion to at least 30 degrees without any indication of ankylosis.

5. Beginning June 5, 2020, the Veteran's service-connected radiculopathy of the right sciatic nerve more closely manifests moderately severe symptoms.

6. Beginning June 5, 2020, the Veteran's service-connected radiculopathy of the left sciatic nerve more closely manifests moderately severe symptoms.

7. From March 31, 2010, to April 6, 2015, and August 2, 2016, to July 5, 2017, the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.

8. Beginning July 6, 2017, the Veteran has a total schedular disability rating and receives special monthly compensation (SMC).

CONCLUSIONS OF LAW

1. Beginning June 5, 2020, the criteria for entitlement to a 10 percent disability rating, but no higher, for service-connected bilateral hearing loss are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100.

2. Beginning June 5, 2020, the criteria for entitlement to a 30 percent disability rating for service-connected left knee instability are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257.

3. Beginning June 5, 2020, the criteria for entitlement to a 20 percent disability rating for the separate award of left knee dislocated semilunar cartilage are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5258.

4. Beginning June 5, 2020, the criteria for entitlement to a 40 percent disability rating, but no higher, for service-connected low back disability are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 52355243.

5. Beginning June 5, 2020, the criteria for entitlement to a 40 percent disability rating, but no higher, for service-connected radiculopathy of the right sciatic nerve are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8520.

6. Beginning June 5, 2020, the criteria for entitlement to a 40 percent disability rating, but no higher, for service-connected radiculopathy of the left sciatic nerve are met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8520.

7. From March 31, 2010, to April 6, 2015, and August 2, 2016, to July 5, 2017, the criteria for entitlement to TDIU are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(a).

8. Beginning July 6, 2017, the criteria for dismissal of entitlement to TDIU are met.  38 U.S.C. § 7104(d).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1979 to October 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

A Board hearing was conducted via video conference in conjunction with the RO in Nashville, Tennessee.  A transcript of this hearing is contained within the electronic claims file.

In an April 2021 Decision, the Board remanded the claims for increase so that the Veteran could be afforded new examinations considering his testimony that his conditions had worsened since he last was examined.  June 5, 2020, Hr'g Tr. at 7, 8, 9.  The agency of original jurisdiction (AOJ) also was instructed to adjust the Veteran's effective dates for his bilateral radiculopathy of his sciatic nerves and obtain outstanding VA medical center (VAMC) records.  From June to September of 2021 the AOJ completed those directives (discussed more fully below).  Thus, the Board finds that the AOJ substantially has complied with the past remand directives, permitting readjudication.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102.

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, 1380 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  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.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.

While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).

"The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim."  Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)).

In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary.  Id.

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

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 veteran.  38 C.F.R. § 4.3.

1. Beginning June 5, 2020, entitlement to a 10 percent disability rating, but no higher, for service-connected bilateral hearing loss is granted.

The assignment of disability ratings for hearing impairment are to be derived by mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In cases in which the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations are conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the pure tone threshold average (horizontal axis) and the percentage of speech discrimination (vertical axis).  The Roman numeral designation is located at the point where the pure tone threshold average and the percentage of speech discrimination intersect.  38 C.F.R. § 4.85(b).

Table VIA, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average.  Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  38 C.F.R. § 4.85(c).

"Puretone threshold average," as used in Tables VI and VIA, is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA.  38 C.F.R. § 4.85(d).

Table VII, "Percentage Evaluations for Hearing Impairment (Diagnostic Code 6100)," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing of the two ears, and the vertical column represents the ear having the better hearing of the two.  The percentage evaluation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(e).

Exceptional patterns of hearing impairment occur when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  When this occurs, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.

With respect to hearing loss, an audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

A June 2021 VA examination report noted audiological examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history.  That examination produced the following results:

Hertz (HZ)	1000	2000	3000	4000	Average Hz

Right Ear	25	30	50	55	40

Left Ear	60	60	65	70	64

The Veteran's right ear received a speech discrimination score of 88 percent, and his left ear received a score of 92 percent.  The Veteran described his functional loss as difficulty keeping up with conversations when the speaker is on his right.

With an average pure tone threshold of 40 and a speech discrimination score of 88 percent, the Veteran's right ear manifests Level II impairment.  With an average pure tone threshold of 64 and a speech discrimination score of 92 percent, the Veteran's left ear manifests Level II impairment.  See 38 C.F.R. § 4.85(b), Table VI.  Thus, with both ears manifesting Level II hearing impairment, the Veteran's bilateral hearing loss meets the criteria for a noncompensable rating only.  See 38 C.F.R. § 4.85(e), DC 6100, Table VII.

Because the Veteran's left ear yielded results of 55 decibels or more at the four specified frequencies, however, it exhibits an exceptional pattern of hearing loss, requiring recalculation under Table VIa.  See 38 C.F.R. § 4.86.  There, the Veteran's puretone threshold average is a level V impairment.

Thus, the Veteran's better ear (right ear) manifests Level II hearing impairment, and his worse ear (left ear) manifests Level V hearing impairment.  Recalculating these values under Table VII shows that he is entitled to a 10 percent disability rating.  See 38 C.F.R. § 4.85(e), DC 6100, Table VII.

There are no other audiological examinations for the Board to evaluate, and the VA examination is an adequate one, so it finds that the 10 percent rating is appropriate.  While the AOJ awarded the Veteran an effective date mirroring the date of the examination, the Board will afford reasonable doubt to the Veteran and assign him an effective date of June 5, 2020the date of his hearing at which time he alleged a worsening of his condition.

2. Beginning June 5, 2020, entitlement to a 30 percent disability rating for service-connected left knee instability is granted.

Under DC 5257, severe, moderate, or slight recurrent subluxation or lateral instability warrants either a 30, 20, or 10 percent disability rating, respectively.

As the Board noted in its prior Decision, during the pendency of this appeal, VA has amended the rating criteria for the musculoskeletal system contained in 38 C.F.R. § 4.71a.  These changes take effect February 7, 2021, and cannot be applied prior to that date.  Beginning that date, however, the Board will apply the rating criteria that is more favorable to the Veteran: either the old or the new criteria.  85 Fed. Reg. 76,453, 76,469 (Nov. 30, 2020).

DC 5257 now bifurcates ratings based on recurrent subluxation or instability and patellar instability.  For the former, a 30 percent evaluation is warranted for unrepaired for failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.  Id. at 76, 463.  For patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating.  Id.  Note (1) states that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.  Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).

The September 2021 Rating Decision awarded the Veteran a 20 percent disability rating effective July 8, 2021.  It did so on the basis that he satisfied the criteria for a 20 percent rating under the new criteria.  Specifically, a July 2021 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history.  In pertinent part, the examiner noted that the Veteran had a ligament repair in the left knee and was prescribed a cane and walker.  A 30 percent rating under the new criteria requires a prescription of both an assistive device and a brace.  Because the Veteran has not been prescribed the latter, he does not qualify for a rating greater than 20 percent under the new criteria.  See 38 C.F.R. § 4.71a DC 5257; 85 Fed. Reg. at 76, 463.

It bears repeating, however, that because this appeal has been pending both before and after the implementation of the new criteria, the Board must apply whichever criteria is more favorable to the Veteran.  Under the old criteria, a 30 percent rating required severe instability.  Severe is not defined within DC 5257.  Where the applicable rating criteria contains terms that are undefined, the Board must define them as it applies them to the veteran at hand to satisfy its obligation to provide adequate reasons or bases.  Johnson v. Wilkie, 30 Vet. App. 245, 25455 (2018); Spellers v. Wilkie, 30 Vet. App. 211, 21920 (2018).  Without any guiding criteria prior to February 7, 2021, the Board finds that the Veteran's prescription of a cane and a walker for his left knee instability rises to the level of "severe" under the old criteria.  In its view, if the Veteran, pursuant to a medical doctor's directive, needs two assistive devices for the severity of his instability, then it qualifies as severe.  See 38 C.F.R. § 4.71a DC 5257.  Thus, the Veteran is entitled to a 30 percent ratingthe highest permitted by law for this DCand the Board will extend that rating back to June 5, 2020, consistent with his allegations that his condition has worsened.

3. Beginning June 5, 2020, entitlement to a 20 percent disability rating, but no higher, for the separate award of left knee dislocated semilunar cartilage is granted.

DC 5258 permits a 20 percent disability rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  This DC did not undergo any changes, and a 20 percent rating is the maximum allowed by law.  Thus, the Veteran is not entitled to a disability rating greater than 20 percent for this condition.  See 38 C.F.R. § 4.71a DC 5258.

The Board, however, will extend the effective date back to June 5, 2020, due to his allegations of worsening.

4. Beginning June 5, 2020, entitlement to a 40 percent disability rating, but no higher, for service-connected low back disability is granted.

DCs 5235 through 5242 pertain to various disease and injuries of the spine.  Invertebral disc syndrome based on incapacitating episodes (IVDS) (DC 5243), however, is 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 evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a at Note (6).

Under 38 C.F.R. § 4.71a, DCs 52355242, a 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine.  A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine.

When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 20407 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar 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.  Id. at Note (5).

While in the past the focus of applying the factors contained in 38 C.F.R. §§ 4.40 and 4.45 were limited to that of range of motion, nothing "suggests that those factors should not apply in the context of ankylosis, particularly as ankylosis is, in essence, a complete limitation of motion."  Chavis v. McDonough, 34 Vet. App. 1, 19 (2021).  Thus, the "application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosisin other words, if it is the functional equivalent of ankylosis."  Id. at 20.

Under DC 5243, incapacitating episodes of IVDS having a total duration of at least six weeks during the past twelve months warrants a 60 percent rating.  For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  Id. at Notes (1) and (2).

The rating criteria for the spine did not undergo any substantive changes.  Rather, the rating schedule merely reflects updated DCs.  DC 5242 now is assigned for degenerative arthritis and degenerative disc disease other than IVDS.  DC 5243IVDSnow will be assigned only where there is disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 should be assigned for all other disc diagnoses.  DC 5244 is created for complete, traumatic paralysis; if it does not cause loss of use of both hands or feet, then it is incomplete paralysis, and the residuals thereof should be rated under the appropriate DCs for the peripheral nerves.  Paraplegia is to be rated under DC 5110.  85 Fed. Reg. at 76,463, 76,469.

The September 2021 Rating Decision increased the Veteran's back rating to 40 percent effective July 8, 2021, but the Board will extend it back to June 5, 2020, consistent with his allegations of worsening.  A rating greater than 40 percent is not warranted, as will be discussed below.

A July 2021 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history.  The report indicated that Veteran suffers from degenerative arthritis of the spine.  The Veteran reported flare-ups described as occurring daily, severe in nature, lasting up to one day, precipitated by anything, and alleviated by rest.  Functional impact was noted as affecting sitting, standing, walking, lifting, pushing, pulling, carrying heavy objects for limited periods of time, requiring frequent changes of position, and affecting focus and concentration due to pain.  Initial range of motion was recorded as follows: forward flexion: 035 degrees; extension: 010 degrees; bilateral lateral flexion: 010 degrees; and bilateral lateral rotation: 015 degrees.  Passive range of motion also was performed but did not differ from initial active range of motion; pain was the same.  Pain was noted on active and passive motion, as well as in weight bearing and non-weight bearing.  There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine, but there was crepitus.  Repetitive use testing was performed, and the additional loss of range of motion was described as follows: forward flexion: 030 degrees; extension: 010 degrees; bilateral lateral flexion: 010 degrees; and bilateral lateral rotation: 015 degrees.  The Veteran was observed immediately after repeated use over time, and the additional loss of range of motion was as follows: forward flexion: 020 degrees; extension: 05 degrees; bilateral lateral flexion: 010 degrees; and bilateral lateral rotation: 010 degrees.  While not examined during a flare-up, the examiner opined that loss of range of motion would be even worse: forward flexion: 015 degrees; extension: 05 degrees; bilateral lateral flexion: 05 degrees; and bilateral lateral rotation: 05 degrees.  The Veteran exhibited muscle spasms of the thoracolumbar spine that resulted in abnormal gait.  Bilateral hip flexion strength was 4/5; all other muscle strength testing revealed normal findings.  There was no muscle atrophy, ankylosis, or IVDS.  The examiner noted constant use of a wheelchair, regular use of a cane, and occasional use of a cane.

Updated VAMC records confirm that the Veteran receives routine treatment for his low back condition.

The Board does not find that a rating greater than 40 percent is warranted.  There is no evidence to suggest that, at the very least, the Veteran experiences fixation of thoracolumbar spinal segment in an unfavorable position.  See 38 C.F.R. § 4.71a DCs 52355242 at Note (5).  The July 2021 VA examination report notes that the Veteran suffers additional loss of range of motion due to repeated use over time, flare-ups, etc., but it does not confirm that his spine ever was fixed in an unfavorable position.  The VAMC records also do not confirm such findings.  Thus, the Board finds that the 40 percent rating is more appropriate.  See Chavis, 34 Vet. App. at 20; DeLuca, 8 Vet. App. at 20407; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 52355242.

5. Beginning June 5, 2020, entitlement to a 40 percent disability rating, but no higher, for service-connected radiculopathy of the bilateral sciatic nerve is granted.

Neurological or convulsive disorders ordinarily are to be rated in proportion to the impairment of motor, sensory or mental function.  Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc.  In rating disability from the conditions in the preceding sentence refer to the appropriate schedule.  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.

The opening paragraph to 38 C.F.R. § 4.124a states that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function.  Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule.  With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves.

The United States Court of Appeals for the Federal Circuit has held that the M21-1 Adjudication Procedures Manual (M21) of the Veterans Benefits Administration (VBA) does not "carry the force of law."  DAV v. Sec'y of Veterans Affs., 859 F.3d 1072, 1077 (Fed. Cir. 2017) overruled by Nat'l Org. of Veterans' Advocs., Inc. v. Sec'y of Veterans Affs., 981 F.3d 1360, 1374, 1378 (Fed. Cir. 2020) (en banc) (holding that, when certain M21 rules are of "general applicability" and should have been published in the Federal Register, the Federal Circuit has jurisdiction under 38 U.S.C. § 502 to review them).  It is "an internal manual used to convey guidance to VA adjudicators.  It is not intended to establish substantive rules beyond those contained in statute and regulation."  Id. (quoting 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007)).  The M21 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion.  Id.; see also 38 U.S.C. § 7104(c).  The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues."  38 C.F.R. § 20.105.

Nevertheless, the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision."  Overton v. Wilkie, 30 Vet. App. 257, 264 (2018).  As stated above, where the applicable rating criteria contains terms that are undefined, the Board must define those terms as it applies them to the veteran at hand to satisfy its obligation to provide adequate reasons or bases.  Johnson, 30 Vet. App. at 25455; Spellers, 30 Vet. App. at 21920.

M21 Section III.iv.4.N.4.c. provides a table that assists VBA adjudicators in determining the appropriate level of severity for incomplete paralysis, neuritis, and neuralgia.  That table is as follows:

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 C.F.R. § 4.124a). 

	Symptoms will likely be described by the claimants and medically graded as significantly disabling.

	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

	combinations of significant sensory changes and reflex or motor changes of a lower degree, or

	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

	neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, or

	neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 C.F.R. § 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 C.F.R. § 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 C.F.R. § 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 C.F.R. § 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 C.F.R. § 4.123).

Under DC 8520, an 80 percent disability rating is warranted for complete paralysis with the following symptoms:  the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  A 60 percent disability rating is warranted for incomplete paralysis with severe symptoms marked by muscular atrophy.

The September 2021 Rating Decision increased the Veteran's rating for his bilateral radiculopathy of the sciatic nerves to 40 percent, beginning July 8, 2021; however, as with all other issues, the Board extends this rating back to June 5, 2020.  For the reasons discussed below, a rating greater than 40 percent is not warranted.

A July 2021 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history.  The report reveals impairment of the Veteran's bilateral sciatic nerves.  He experiences moderate: constant pain, paresthesias and/or dysesthesias, and numbness.  Muscle strength and reflexes were normal.  There was decreased sensation in the bilateral lower leg/ankle and foot/toes.  There were no trophic changes, but the examiner noted an abnormal gait described as "only able to transfer from scooter, weakness, unsteady gait," which was due to the Veteran's back and radiculopathy.  The examiner noted constant use of a wheelchair, occasional use of a cane, and regular use of a walker.  Overall, the examiner characterized the Veteran's condition as moderately severe.

Additional VAMC records note the Veteran's continued care and treatment for his radiculopathy.

The Board finds that the Veteran's current 40 percent rating is the most appropriate.  There is scant guidance on how to define the severity terms for the peripheral nerves.  Where the Board otherwise is required to define these terms when adjudicating the Veteran's appeal, see Overton, 30 Vet. App. at 264, it finds the guidance contained in M21 III.iv.4.N.4.c. helpful and instructive.  Because the Board must ensure that it defines these criteria as applied to the Veteran, see Johnson, 30 Vet. App. at 25455; Spellers, 30 Vet. App. at 21920, and discuss "any relevant provisions contained in the [M21]," it turns to, and, in the absence of any other prevailing authority, relies on, the various M21 charts noted herein.  Overton, 30 Vet. App. at 264.

As the criteria notes, a 60 percent rating requires "severe symptoms marked by muscular atrophy."  38 C.F.R. § 4.124a DC 8520 (emphasis added).  The Board finds that neither requirement is met.  First, there is no evidence that the Veteran has been diagnosed with muscular atrophy.  Second, the Veteran's radiculopathy does not manifest severe symptoms.  As the M21 notes, VA adjudicators can expect to see motor and reflex impairment reflecting a high degree of disability, and trophic changes may be seen.  But all those symptoms are missing from the Veteran.  His muscle strength and reflexes are normal, and there are no tophic changes.  Thus, the Board is not persuaded that he experiences severe symptoms.  In the absence of such debilitating symptoms, it finds that an increase is not warranted.  See Overton, 30 Vet. App. at 264; id.; M21 III.iv.4.N.4.c.

TDIU

A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record in association with an increased rating, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for the increased rating on appeal.  Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (per curiam).  Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status.  Payne v. Wilkie, 31 Vet. App. 373, 38889 (2019); Harper v. Wilkie, 30 Vet. App. 356, 35961 (2018).

The Veteran's claim for an increase in his left knee and back have remained pending before the Board since March 2004 and December 2008, respectively.  During the pendency of those claims, the Veteran filed a July 2015 application for TDIU alleging he is unemployable due to, among other conditions, his low back and legs.  Thus, the Board finds that the request for TDIU mirrors the earliest increased rating claim that currently is before the Boardthe left knee.  Thus, the claim for TDIU extends from March 2004 to the present.  See Payne, 31 Vet. App. at 38889; Harper, 30 Vet. App. at 35961.

It is the established policy of VA 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.  A finding of total disability is appropriate 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(a)(1), 4.15, 4.16.

A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider.  Vettese v. Brown, 7 Vet. App. 31, 3435 (1994).

Where the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more.  If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  Id.

The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU.  Marginal employment, however, is not considered substantially gainful employment.  Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person.  Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop.  38 C.F.R. § 4.16(a).  VA, however, specifically has not defined the term "protected environment" despite being invited to do so.  See Cantrell v. Shinseki, 28 Vet. App. 382, 391 (2017) ("[A]bsent an articulated standard for employment 'in a protected environment' that is capable of consistent application by VA and meaningful review by this Court, we cannot defer to the Secretary's decision not to define that term in § 4.16(a) (citing Hood v. Brown, 4 Vet. App. 301, 303 (1993))).

In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.

Because VA has failed to define them, the United states Court of Appeals for Veterans Claims (CAVC) has offered guidance on what it means to "secure or follow" substantially gainful employment.  This phrase includes both an economic and non-economic component.  Ray v. Wilkie, 31 Vet. App. 58, 72 (2019).  The economic component requires that a veteran's income be lower than the federal poverty threshold.  The non-economic component includes assessing a veteran's education, training, and work history, with the ultimate question being whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  Id.

A May 2016 Rating Decision granted the Veteran TDIU from April 7, 2015, to August 1, 2016.  Thus, this period is not before the Board.

The Veteran has met the schedular criteria for TDIU since March 31, 2010.  At that point, he had a combined disability rating of 70 percent.  Because his low back disability and radicular complications are disabilities resulting from a common etiology or a single accident, their combined rating (20 percent for the back, 10 percent for the right extremity, and 10 percent for the left extremity) equals 40 percent, satisfying the schedular requirements.  See 38 C.F.R. §§ 4.16(a), 4.25.

On his July 2015 application for TDIU (VA Form 21-8940), the Veteran indicated that he has worked in maintenance from 1998 to 2007.  He endorses completing one year of high school without any other education or training.  A November 2015 VA Form 21-4192 from the Veteran's most recent employer states that his last date of work was April 24, 2009, as he was laid off.  On a subsequent November 2016 application for TDIU, the Veteran noted that he completed high school.

For the specified periods, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.  The Board will address in turn both the economic and non-economic component for a TDIU award.

A July 2011 Social Security Administration (SSA) Decision found that the Veteran had not engaged in "substantial gainful activity" since April 12, 2009, and this coincides with the Veteran's report on his TDIU application that he has not worked since then.  Because the record indicates that the Veteran has not worked since April 2009, the Board finds that the economic component for TDIU for these periods is met, i.e., the Veteran has not earned an income above the poverty threshold during those times.  See Ray, 31 Vet. App. 72.

Although not binding on the Board, the SSA Decision found that the disabilities that gave rise to the Veteran's unemployability included, among others, his service-connected back and left knee.  A review of various VA examinations throughout this time also verifies that the Veteran would have struggled with employment in his only known field of maintenance.  A February 2012 VA knee examination noted that the Veteran could not walk more than 100 feet without assistance or rest.  An April 2014 VA back examination stated that he could not stand straight or walk without devices; a subsequent December 2015 back examination indicates that physical employment altogether is precluded.  A September 2016 knee examination indicated that the Veteran could not participate in tasks requiring repetitive squatting, kneeling, running, or crawling.  Standing is limited to five minutes at a time, but he otherwise is capable of active and sedimentary employment with the above limitations.

Assessing the Veteran's education, training, and work history, the Board finds that he is incapable of performing the physical and mental acts required by employment.  It is easy to see that, for the time periods before the Board, the Veteran was not capable of performing the physical demands that his prior occupation required.  As an individual in maintenance, his job solely would have required physical acts, and, by December 2015, that type of employment altogether was precluded.  At least one examiner opined that the Veteran could engage in sedentary employment; however, the Board is required to discuss how the "concept of sedentary work factors into [a] veteran's overall disability picture and vocational history, and the veteran's ability to secure or follow a substantially gainful occupation."  Withers v. Wilkie, 30 Vet. App. 139, 147 (2018).  His only form of employment was in maintenance.  He has never engaged in any type of employment within an office environment, and his back and radicular symptoms also interfere with sittingsomething sedentary work obviously would aggravate.  Thus, the Board does not find that the Veteran would be able to engage in sedentary or physical work, see id., and finds that he meets the non-economic component for a TDIU award.  See Ray, 31 Vet. App. 72.

6. Beginning July 6, 2017, entitlement to TDIU is dismissed.

The issue for TDIU as presented to the Board was entitlement prior to April 7, 2015, and beginning August 1, 2016.  The Board has awarded TDIU up until the Veteran has been in receipt of his total schedular rating for his psychiatric disability (July 6, 2017).  While a total combined rating automatically does not moot the issue of TDIU, the Veteran also has been receiving SMC from that very same date.  See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

Thus, because the Veteran's TDIU award is not premised upon a single disability, and because he currently receives both a total schedular and SMC rating, both beginning July 6, 2017, the issue of entitlement to TDIU beginning that date is dismissed for a lack of any controversy or justiciable claim.  See 38 U.S.C. § 7104(d); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).

REASONS FOR REMAND

As stated above, this TDIU claim extends back to March 2004, but the Veteran has met the schedular criteria only as early as March 31, 2010.  Thus, the Board must analyze the remainder of the claim on an extraschedular basis.

The Board does not have jurisdiction to authorize an extraschedular rating in the first instance.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  It may, however, determine that a particular case warrants referral to the Director, Compensation Service, for extraschedular consideration.  38 C.F.R. § 4.16(b).  "[T]he initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities."  Ray, 31 Vet. App. at 66 (emphasis added) (citing Stanton v. Brown, 5 Vet. App. 563, 570 (1990)).

Here, the Board finds that there is a reasonable possibility that the Veteran is unemployable by reasons of service-connected disabilities.  Recall above that the July 2011 SSA Decision found that the Veteran had not worked in gainful employment since April 2009.  It cited as reasons, among others, the Veteran's service-connected left knee and back.  That alone is evidence that he potentially has been unemployable prior to March 31, 2010, by reason of service-connected disabilities.  Thus, this portion of the Veteran's claim must be referred to the Director, Compensation Service, to make an initial extraschedular TDIU recommendation.  See id.; 38 C.F.R. § 4.16(b).

The matter is REMANDED for the following action:

1. Refer to the Director, Compensation Service, the issue of entitlement to TDIU on extraschedular basis prior to March 31, 2010.  The Director's determination must be documented in the claims file.

2. Conduct any other development deemed necessary and then readjudicate the Veteran's claim.

The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).

This claim must be afforded expeditious treatment.   The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112.

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JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Trevor T. Bernard, 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.