Citation Nr: 21075474 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 20-27 892 DATE: December 20, 2021 ORDER For the period prior to November 11, 2020, a 40 percent rating for degenerative disc disease with intervertebral disc syndrome, spinal stenosis and degenerative facet disease with lordosis is granted. For the period following November 11, 2020, a rating in excess of 40 percent for degenerative disc disease with intervertebral disc syndrome, spinal stenosis, and degenerative facet disease with lordosis (lumbar spine disability) is denied. Entitlement to an initial 40 percent rating for sciatic radiculopathy of the left lower extremity, is granted. Entitlement to an initial 30 percent rating for femoral radiculopathy of the left lower extremity, is granted. Entitlement to an initial 20 percent rating for sciatic radiculopathy of the right lower extremity, is granted. Entitlement to a total disability rating based on individual employability (TDIU) for the period from April 11, 2012, to November 11, 2020, is granted. REMANDED Entitlement to service connection for prostate cancer is remanded. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran's lumbar spine disability more nearly approximates forward flexion limited to 30 degrees or less, but without unfavorable ankylosis of the entire thoracolumbar spine. 2. For the entire rating period on appeal, the Veteran's sciatic radiculopathy of the left lower extremity more nearly approximates moderately severe incomplete paralysis. 3. For the entire rating period on appeal, the Veteran's femoral radiculopathy of the left lower extremity more nearly approximates moderate incomplete paralysis. 4. For the entire rating period on appeal, the Veteran's sciatic radiculopathy of the right lower extremity more nearly approximates moderate incomplete paralysis. 5. The Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment for the period from April 11, 2012, to November 11, 2020. CONCLUSIONS OF LAW 1. For the period prior to November 11, 2020, the criteria for a 40 percent rating for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic 5242, 5243. 2. For the period following November 11, 2020, the criteria for a 40 percent rating for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic 5242, 5243. 3. The criteria for an initial 40 percent for sciatic radiculopathy of the left lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, 4.40, Diagnostic Code 8520. 4. The criteria for an initial 30 percent rating for femoral radiculopathy of the left lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, 4.40, Diagnostic Code 8526. 5. The criteria for an initial 20 percent rating for sciatic radiculopathy of the right lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, 4.40, Diagnostic Code 8520. 6. The criteria for entitlement to a TDIU for the period from April 11, 2012, to November 11, 2020, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1967 to June 1967, from January 1970 to March 1972, and from March 1972 to July 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing has been associated with the record. During the period on appeal, the Veteran was granted an increased 40 percent rating for his lumbar spine disability in an August 2021 rating decision, effective November 11, 2020. As less than the maximum available benefit for a schedular rating was awarded and to the extent that the increases was not awarded for the entirety of the claims period, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). As it pertains to the TDIU issue, an August 2021 Board decision assigned a TDIU, effective November 11, 2020, which corresponded with the date on which he was first entitled to a TDIU on a schedular basis. The Board, however, finds that the TDIU issue was part and parcel of a claim for increased rating for the Veteran's lumbar spine disability, and therefore, the Board will consider the assignment of a TDIU for the period prior to November 11, 2020. See Rice v. Shinseki, 22 Vet. App. 447 (2009). INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. 1. Entitlement to a rating in excess of 40 percent for degenerative disc disease with intervertebral disc syndrome, spinal stenosis, and degenerative facet disease with lordosis (lumbar spine disability) The Veteran contends that an increased rating is warranted for his service-connected lumbar spine disability. The Veteran's lumbar spine disability has been rated as 20 percent disabling prior to November 11, 2020, under 38 C.F.R. § 4.71a Diagnostic Code 5237. During the course of the appeal, in an August 2021 rating decision the Veteran's lumbar spine was granted an increased 40 percent rating effective November 11, 2020, under Diagnostic Code 5242-5243. The Veteran's lumbar spine disability is rated under hyphenated diagnostic codes using Diagnostic Code 5242, degenerative arthritis of the spine and Diagnostic Code 5243, intervertebral disc syndrome. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The Veteran's low back disability is rated under Diagnostic Code 5242-5243, degenerative arthritis of the spine and intervertebral disc syndrome. Lumbosacral strain and degenerative arthritis of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the Formula provides for ratings as follows. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 body height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. Associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237, 5242, Note 1. 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 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 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. Intervertebral disc syndrome permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS) 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. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS based on Incapacitating Episodes provides ratings for incapacitating episodes as follows: having a total duration of at least 6 weeks during the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a. Note 1 states that 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. Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to 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. Turning to the medical evidence of record, at the time of a September 2012 VA examination, the Veteran reported constant, worsening pain with sitting, standing, bending, and lifting. He also reported flare-ups 3-4 times monthly. On ROM testing, the Veteran had flexion of 60 degrees, with pain beginning at 30 degrees; extension of 20 degrees, with pain beginning at 15 degrees; left lateral flexion of 20 degrees, with pain beginning at the same; left lateral rotation to 20 degrees with pain beginning at 15 degrees; right lateral flexion of 20 degrees, with pain beginning at the same; and right lateral rotation of 20 degrees, with pain beginning at 15 degrees. With repetitive use, the Veteran had flexion of 60 degrees, and extension, left lateral flexion, left lateral rotation, right lateral flexion, and right lateral rotation were all measured to 20 degrees. After repetitive use, the Veteran's functional loss was described as less movement than normal and pain on movement. There was no evidence of tenderness or pain on palpitation, guarding or muscle spasm, or any objective neurologic abnormalities. The Veteran had IVDS of the lumbar spine, but there was no evidence of incapacitating episodes. The functional impact of the Veteran's spine condition was noted as increased pain with prolonged sitting, standing, bending, and lifting. The Veteran was also afforded a VA examination in April 2015. He reported pain that had worsened in the few years prior and sometimes rendered him unable to get out of bed. The Veteran also reported flare-ups with pain he described as "terrible", with an inability to get out of bed, causing him to take more medication than usual. On ROM testing, the Veteran had flexion of 45 degrees, with pain beginning at 30 degrees; extension of 15 degrees, with pain throughout; left lateral flexion of 15 degrees, with pain throughout; left lateral rotation to 25 degrees with pain beginning at 10 degrees; right lateral flexion of 10 degrees, with pain throughout; and right lateral rotation of 20 degrees, with pain beginning at 10 degrees. The Veteran refused repetitive use testing, as he reported that it causes too much pain. The Veteran's functional loss after repetitive use was described as less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, and interference with sitting, standing and /or weight-bearing. The examiner noted pain with palpation to the lumbar musculature. There was evidence of guarding and/or muscle spasm that did not result in abnormal gait or spinal contour. There was no evidence of IVDS. The Veteran was noted to occasionally use a cane and walker for stability. As to functional impact, the Veteran was noted to be unable to stand, walk, and sit in chairs for prolonged periods. Finally, the examiner noted that it was not possible to determine without resorting to mere speculation if additional limitation of motion is present due to pain during flare-ups or when joint is used repeatedly over a period of time without directly observing the Veteran. At the time of the Veteran's April 2016 VA Form 9, he reported an inability to sit, stand, or walk for a prolonged period, and that medication provided no relief. At the time of the February 2017 VA examination, the Veteran reported constant low back pain, which he rated as 6/10 in severity. He further reported flare-ups that caused increased pain and were precipitated by sitting down too hard or walking too fast. He did not report any functional impairment. On ROM testing, the Veteran had flexion of 60 degrees, and extension, left lateral flexion, left lateral rotation, right lateral flexion, and right lateral rotation were all measured to 20 degrees. There was no evidence of painful motion, pain with weight-bearing, or evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion after repetitive use. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups. The Veteran did not have guarding or muscle spasm of the spine. There was no evidence of ankylosis, IVDS, or any other neurologic abnormalities. During the Veteran's April 2021 hearing, he reported worsening back pain for the past 10 years. He also testified that he used a cane and a walker, and that he was also issued a wheelchair 10 years prior, but that he did not use it. He reported a history of falls, issues turning his body left, bending over, difficulty standing up, and also with daily activities such as tying his shoes. He reported constant pain. The Veteran was most recently afforded a VA examination in July 2021. The Veteran reported chronic low back pain and stiffness, constant throbbing pain of the entire spine, and difficulty sleeping due to pain. He also reported using a wheelchair to travel long distances and a walker to travel short distances. The Veteran reported weekly severe flare-ups of the spine that lasted 1-2 days, that were precipitated by prolonged sitting or standing, and caused severe sharp stabbing pain, low back spasms, and severe stiffness. He indicated that he used pain medication and rest to alleviate flare-ups. As to functional impairment during flare-up, he reported severe pain and fatigue making it difficult to walk, and that he required a wheelchair. On ROM testing, the Veteran had flexion of 25 degrees, extension of 10 degrees; left lateral flexion of 15 degrees; left lateral rotation to 15 degrees; right lateral flexion of 15 degrees; and right lateral rotation of 15 degrees. There was evidence of pain with active motion, weight bearing, and non-weight bearing. Passive ROM testing was not performed due to the risk of further injury. The examiner noted localized tenderness or pain on palpation of the spine. The Veteran was also unable to perform repetitive use testing due to risk of further injury. The examiner estimated that with repetitive use and on flare-up, the Veteran had flexion of 20 degrees, and extension, left lateral flexion, left lateral rotation, right lateral flexion, and right lateral rotation were all estimated to 10 degrees. Pain, fatigability, weakness, and lack of endurance were all noted to cause functional loss with repetitive use and with flare-ups. The Veteran was noted to have tenderness of the entire lumbar spine that did not result in abnormal gait or abnormal spinal contour. However, both muscle spasm and guarding resulted in abnormal gait or abnormal spinal contour. The examiner indicated that the additional factors that contributed to the Veteran's disability were interference with sitting and standing, disturbance of locomotion, less movement than normal, weakened movement, and instability of station. There was no evidence of ankylosis or any other neurologic abnormalities. The Veteran had IVDS of the lumbar spine, but there was no evidence of incapacitating episodes. Additionally, the examiner noted that an MRI revealed degenerative disc disease and spinal stenosis, which are common progressions of degenerative facet disease, due to chronic inflammation causing further inflammation and degeneration. As to functional impact, the Veteran was noted to have difficulty with any bending or twisting, difficulty with prolonged sitting or standing, having to change positions frequently, and poor balance and unsteady gait requiring rollator walker and a wheelchair for longer distances. He was also noted to require assistance getting dressed, getting in and out of vehicle, and with other activities of daily living. In this case, the Board finds that a 40 percent rating is warranted for the entire period on appeal. The evidence shows that as early as the September 2012 VA examination, the Veteran had flexion of 60 degrees, with pain beginning at 30 degrees. See VAOPGCPREC 9-98 (recognizing that motion effectively ends where pain begins). As noted above, a 40 percent rating is warranted under General Rating Formula for Diseases and Injuries of the Spine when forward flexion is limited to 30 degrees or less. The Board next finds that a rating in excess of 40 percent is not warranted for the entire rating period on appeal. The medical evidence of record for the entire period specifically indicated that the Veteran did not have ankylosis of the spine. Moreover, although the Veteran was noted to have IVDS, he was not shown to have had any incapacitating episodes that required bed rest as prescribed by a physician. For these reasons, the Board finds that a rating in excess of 40 percent is not warranted. Based on the foregoing, a 40 percent rating is warranted for the entire period on appeal. 2. Entitlement to a rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity The Veteran was initially awarded service connection for sciatic radiculopathy of the left lower extremity in a November 2012 rating decision, rated as 10 percent disabling, effective April 11, 2012. In an April 2015 rating decision, a 20 percent rating was assigned effective January 2, 2015. The Veteran asserts that increased ratings are warranted for both portions of the period on appeal. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to a varied level of the nerve lesion or to partial regeneration. When sciatic nerve involvement is wholly sensory, the rating should be for, at most, moderately severe incomplete paralysis. See 38 C.F.R. §§ 4.123, 4.124a. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes is to be avoided when rating a Veteran's service-connected disabilities. However, the Veterans Benefits Administration (VBA) has determined that there are 5 separate nerve branches in the lower extremities that may be separately rated. M21-1, III.iv.4.G.4.c. According to VBA, the sciatic nerve (DCs 8520, 8620 and 8720), the external popliteal nerve (common peroneal) (DCs 8521, 8621 and 8721), the musculotaneous nerve (DCs 8522, 8622 and 8722), the anterior tibial nerve (deep peroneal) (DCs 8523, 8623, 8723), the internal popliteal nerve (tibial) (DCs 8524, 8624, and 8724), and the posterior tibial nerve (DCs 8525, 8625, and 8725) affect the foot and leg sensory and motor function of the buttock, leg, knee, muscles below knee, lower leg, fibula, foot, muscles of the sole of the feet, plantar flexion, and toes. Id. M21-1, Part III, Subpart iv, 4.G.4.c. Assigning separate ratings from within these nerve branches is not warranted as it would constitute impermissible pyramiding. M21-1, III.iv.4.G.4.d. The anterior crural nerve (femoral) (DCs 8526, 8626, and 8726) and internal saphenous nerve (DCs 8527, 8627, and 8727) affect the thigh and leg sensory and motor function of the quadriceps muscle, front of thigh; medial calf; and medial malleolus. M21-1, Part III, Subpart iv, 4.G.4.c. These are part of a separate nerve group that may receive a separate evaluation from the sciatic nerve group. M21-1, III.iv.4.G.4.d. In this case, the Veteran is in receipt of a compensable ratings for the left leg under Diagnostic Code 8520 for impairment of the sciatic nerve AND Diagnostic Code 8526 for the femoral nerve. As to the right leg, the Veteran has been assigned a compensable rating under Diagnostic Code 8520 for impairment of the sciatic nerve. The Board recognizes that the Veteran was also recently assigned a separate 20 percent rating for femoral radiculopathy of the right leg in an August 2021 rating decision. However, as the Veteran has not appealed that rating it is not appellate status and will not be addressed below. Turning to the medical evidence of record, at the time of a September 2012 VA spine examination, the Veteran reported a one-year history of shooting pain down the left leg. As to radicular symptoms, the Veteran was noted to have mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. All muscle strength, reflex, and sensory testing were normal, and there was no evidence of muscle atrophy. The examiner noted mild sciatic involvement of the left lower extremity. The Veteran's VA treatment records show a history of falls related to leg weakness, resulting in his leg buckling/giving out. See CAPRI records, dated November 25, 2013, and December 13, 2013. VA treatment records during the same period also indicate that the Veteran was issued a rollator walker for gait and balance issues in 2013. The Veteran was also afforded a VA spine examination in March 2015. The Veteran reported that there were days where he could not get out of bed due partly to pain that radiated down his leg. The Veteran had 4/5 muscle strength with hip flexion, knee extension, ankle dorsiflexion, great toe extension, and 3/5 muscle strength with ankle plantar flexion. Sensory examination showed decreased sensation to light touch of the upper anterior thigh, thigh/knee, and lower leg/ankle. Reflex testing was normal and there was no evidence of muscle atrophy. Straight leg raising testing was negative. As to radicular symptoms, the Veteran was noted to have moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner noted moderate sciatic involvement of the left lower extremity. The Veteran was noted to use a walker and cane for stability. As to functional impact, the Veteran was unable to stand, walk, or sit in a chair for long periods. At the time of a February 2017 VA peripheral nerves examination, the Veteran reported pain that shoots down his leg 2-3 times per day, that lasted a few seconds. He reported that the pain stopped at his calf and didn't go to his feet, and that the pain was relieved by sitting. As to radicular symptoms, there was no evidence of constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness of the left lower extremity. All muscle strength, reflex, and sensory testing were normal, and there was no evidence of muscle atrophy. The examiner noted mild incomplete paralysis of the sciatic nerve. The Veteran was also afforded a VA peripheral nerves examination in January 2019. The Veteran reported numbness and weakness of the left leg that resulted in falling. As to radicular symptoms, the Veteran was noted to have moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. All muscle strength and reflex testing were normal, with no evidence of muscle atrophy. Sensation testing for light touch was absent for the upper anterior thigh and thigh/knee. The examiner noted mild incomplete paralysis of the sciatic nerve. He was noted to occasionally use a cane due to his radiculopathy. As to functional impact, the Veteran reported trouble getting in and out of the car, falling often, and needing help getting out of bed. At the time of the Veteran's April 2021 hearing, he testified that his left leg was much worse than his right. He reported numbness from the hip all the way down the leg. He also reported falling several times due to the left leg and that he couldn't put any weight on the leg, or it would give away. During an April 2019 examination, the Veteran reported trouble getting in and out of the car, falling often, and needing help getting out of bed. The Veteran was also afforded a VA spine examination in July 2021. He reported severe sharp stabbing pain radiating down the hips and legs, poor balance and unsteady gait with falls, tingling and complete numbness of the left leg, and difficulty sleeping due to pain. He also reported using a wheelchair to travel long distances and a walker to travel short distances. Muscle strength testing was 4/5 with hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. The Veteran's deep tendon reflexes were hypoactive for the left knee and ankle. The Veteran had decreased sensation to light touch of the upper anterior thigh, thigh/knee, lower leg/ankles, and foot/toes. As to radicular symptoms, the Veteran was noted to have severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. He was noted to have a severe antalgic unsteady gait on examination. As to functional impairment, the Veteran was noted to be a fall risk with severe balance impairment, and he required assistance getting dressed, getting in and out of his vehicle, and with other activities of daily living. In this case, the Board acknowledges that no VA examination of record concluded that the Veteran's sciatica of the left lower extremity was manifested by moderately severe incomplete paralysis. However, in consideration of the medical evidence showing at worst, severe pain, severe paresthesias and/or dysesthesias, severe numbness, absent deep tendon reflexes, and decreased sensation of the entire lower left extremity, the Board finds that the Veteran's disability picture more nearly approximates moderately severe incomplete paralysis to warrant a 40 percent rating. This is considered in conjunction with the Veteran's inability to perform normal working movements of the left leg. Specifically, the medical evidence of record shows that throughout the entire period on appeal the Veteran had a history of falls due to leg weakness, that he was issued a walker for gait and balance issues, that he was unable to stand, walk, or sit in a chair for long periods, and ultimately required some level of assistance with activities of daily living. See 38 C.F.R. § 4.40. The medical evidence of record does not reflect that he experiences muscle atrophy, other neurological impairments, or other indicia of more than moderate paralysis in either lower extremity for this period. Other than the single finding of absent deep tendon reflexes for the ankles in June 2015, all other VA examination reports of record have noted normal motor strength, and the Veteran's reflex examinations were otherwise normal. The next higher 60 percent rating is not warranted as the evidence fails to show marked muscular atrophy. For the reasons stated above, the Board finds that a 40 percent rating, but no higher, for sciatic radiculopathy of the left lower extremity, is warranted for the entire period on appeal. 3. Entitlement to a rating in excess of 20 percent for femoral radiculopathy of the left lower extremity The Veteran is also in receipt of a 20 percent rating for femoral radiculopathy of the left lower extremity, effective January 2, 2015. Diagnostic Code 8526 provides ratings for paralysis of the anterior crural (femoral) nerve. Diagnostic Code 8526 provides that mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the anterior crural nerve with paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. The evidence related to the impairment of the Veteran's femoral nerve is largely identical to that of the sciatic nerve, which is described in great detail above. That evidence is incorporated herein by reference. For the sake of brevity, the evidence discussed in the analysis below will be primarily limited to that specific to the femoral nerve. At the time of the March 2015 VA spine examination, the examiner noted moderate femoral involvement of the left lower extremity. As noted above, the evidence showed decreased muscle strength and decreased sensation to light touch of the upper anterior thigh, thigh/knee, and lower leg/ankle. During the February 2017 VA peripheral nerves examination, the Veteran reported pain that shoots down his leg and stops at his calf 2-3 times per day, that lasted a few seconds. The examiner noted mild incomplete paralysis of the femoral nerve. At the time of the January 2019 VA peripheral nerves examination, the Veteran reported numbness and weakness of the left leg that resulted in falling. The examiner noted an unsteady gait with a limp on the left due to radiculopathy of the femoral nerve. The examiner noted moderate incomplete paralysis of the femoral nerve. The Veteran was noted to occasionally use a cane due to his radiculopathy. As to functional impact, the Veteran reported trouble getting in and out of the car, falling often, and needing help getting out of bed. The Veteran had decreased sensation to light touch of the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. Straight leg raising test results were positive. At the time of the Veteran's April 2021 hearing, he testified that his left leg was much worse than his right. He reported numbness from the hip all the way down the leg. He also reported falling several times due to the left leg and that he couldn't put any weight on the leg, or it would give away. As noted above, the Veteran was also afforded a VA spine examination in July 2021. He reported severe sharp stabbing pain radiating down the hips and legs, poor balance and unsteady gait with falls, tingling and complete numbness of the left leg, and difficulty sleeping due to pain. The Veteran had decreased muscle strength and decreased sensation to light touch throughout the entire lower left extremity. As to radicular symptoms, the Veteran was noted to have severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. He was noted to have a severe antalgic unsteady gait on examination. As to functional impairment, the Veteran was noted to be a fall risk with severe balance impairment, and he required assistance getting dressed, getting in and out of vehicle, and with other activities of daily living. In this case, the Board acknowledges that the VA examinations of record have determined that the Veteran's impairment of the femoral nerve is manifested by, at most, moderate incomplete paralysis. However, in consideration of the medical evidence showing at worst, severe pain, severe paresthesias and/or dysesthesias, severe numbness, decreased muscle strength and decreased sensation to light touch throughout the entire lower left extremity, the Board finds that the Veteran's disability picture more nearly approximates severe incomplete paralysis to warrant an increased 30 percent rating. As discussed above, this is considered in conjunction with the Veteran's history of falls due to leg weakness, that he was issued a walker for gait and balance issues, that he was unable to stand, walk, or sit in a chair for long periods, and ultimately required some level of assistance with activities of daily living. See 38 C.F.R. § 4.40. The next higher 40 percent rating is not warranted as the evidence fails to show complete paralysis of the anterior crural nerve with paralysis of the quadriceps extensor muscles. For the reasons stated above, the Board finds that a 30 percent rating, but no higher, for femoral radiculopathy of the left lower extremity, is warranted for the entire period on appeal. 4. Entitlement to a rating in excess of 10 percent for sciatic radiculopathy of the right lower extremity The Veteran is also in receipt of a 10 percent rating for sciatic radiculopathy of the right lower extremity, effective March 27, 2013. The Veteran contends that a rating in excess of 10 percent is warranted. As with the left leg, the Veteran's sciatic radiculopathy of the right leg is rated under Diagnostic Code 8520. Under that code, mild incomplete paralysis of the sciatic nerve is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Turning to the medical evidence of record, an August 2013 VA treatment record shows the Veteran's report of his right leg becoming numb when he sits for a period of time, and that he had fallen several times. VA treatment records dated October, November, and December 2013, all indicate that the Veteran had a history of his right leg buckling frequently, and that he experienced weakness of the leg. A November 2013 MRI of the Veteran's spine showed radiculopathy of the right lower extremity with motor or sensory deficit, and a notation that the Veteran's symptoms were worsening. At the time of the March 2015 VA spine examination, the Veteran was noted to have moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right lower extremity. The evidence showed decreased muscle strength with hip flexion, ankle dorsiflexion, and great toe extension. All reflex and sensory testing were normal. While the examiner noted radiculopathy of a mild severity for the right lower extremity, there was no indication as to which nerve was involved. During the February 2017 VA peripheral nerves examination, the Veteran reported pain that shoots down his leg and stops at his calf 2-3 times per day, that lasted a few seconds. He was noted to have mild intermittent pain of the right lower extremity. There was no evidence of constant pain, paresthesias and/or dysesthesias, or numbness. All muscle strength, reflex, and sensory testing were normal. The examiner noted mild incomplete paralysis of the sciatic nerve. At the time of the January 2019 VA peripheral nerves examination, the Veteran reported numbness, pain, and tingling of the right leg. The examiner noted mild incomplete paralysis of the sciatic nerve. The Veteran had moderate constant pain, mild paresthesias and/or dysesthesias, and mild numbness of the right lower extremity. All muscle strength, reflex, and sensory testing were normal. The examiner noted mild incomplete paralysis of the sciatic nerve. At the time of the Veteran's April 2021 hearing, he testified that his left leg was much worse than his right. He indicated that he seldomly had numbness and pain, occurring 1-2 times per month. The Veteran testified that the right leg was "fine". The Veteran was also afforded a VA spine examination in July 2021. He reported severe sharp stabbing pain radiating down the hips and legs, poor balance and unsteady gait with falls, and numbness and tingling of leg that was most severe in the left leg. The Veteran's deep tendon reflexes were hypoactive for the right knee and ankle. The Veteran had decreased sensation to light touch of the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. Straight leg raising test results were positive. As to radicular symptoms, the Veteran was noted to have moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. He was noted to have a severe antalgic unsteady gait on examination. As to functional impairment, the Veteran was noted to be a fall risk with severe balance impairment, and he required assistance getting dressed, getting in and out of vehicle, and with other activities of daily living. There was no indication that the findings as to functional impairment were directly related to impairment of the right leg. In this case, the Board acknowledges that the VA examinations of record have determined that the Veteran's impairment of the sciatic nerve of the right lower extremity is manifested by, at most, mild incomplete paralysis. However, in consideration of the medical evidence showing at worst, moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, decreased muscle strength, and decreased sensation to light touch throughout the entire right lower extremity, the Board finds that the Veteran's disability picture more nearly approximates moderate incomplete paralysis to warrant an increased 20 percent rating. As discussed above, this is considered in conjunction with the Veteran's history of falls due to leg weakness, that he was issued a walker for gait and balance issues, that he was unable to stand, walk, or sit in a chair for long periods, and ultimately required some level of assistance with activities of daily living. See 38 C.F.R. § 4.40. The next higher 40 percent rating is not warranted as the evidence fails to show moderately severe paralysis of the sciatic nerve. Notably, at the time of the March 2015 VA examination, all reflex and sensory testing were normal. Additionally, the February 2017 and January 2019 VA examinations revealed normal muscle strength, reflex, and sensory testing. Finally, The Board has also considered the Veteran's own testimony at the time of his April 2021 hearing that his left leg was much worse than his right and that his right leg was "fine". For the reasons stated above, the Board finds that a 20 percent rating, but no higher, for sciatic radiculopathy of the right lower extremity, is warranted for the entire period on appeal. 5. Entitlement to a total disability rating based on individual employability (TDIU) prior to November 11, 2020 Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. As noted above, the Veteran was awarded a TDIU in an August 2021 rating decision, effective November 11, 2020. The Veteran's TDIU claim is part and parcel of his increased rating for a lumbar spine disability, which was filed April 11, 2012. Thus, as the issue of entitlement to TDIU in the context of an increased rating claim may be co-extensive with that claim in terms of the time period under review, the effective date of TDIU may be as early as the effective date applicable to the increased rating claim under 38 C.F.R. § 3.400 (o). Accordingly, the Board must determine whether the assignment of a TDIU is warranted for the period from April 11, 2012, to November 11, 2020. In this case, prior to November 11, 2020, the Veteran was in receipt of compensable ratings for a lumbar spine disability, sciatic radiculopathy of the left lower extremity, femoral radiculopathy of the left lower extremity, and sciatic radiculopathy of the right lower extremity. The Veteran had a 30 percent combined rating from April 11, 2012; a 40 percent combined rating from March 27, 2013; and a 60 percent rating from January 2, 2015. Notably, all of his service-connected disabilities arise from the same etiology. Given the increased evaluations assigned herein, including a 40 percent rating for the Veteran's lumbar spine disability as of April 11, 2012, the objective minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for the award of a schedular TDIU are met for the entire period on appeal. At the time of a December 2008 VA Form 21-8940, the Veteran indicated that he became too disabled to work in 2008. He reported that when he last worked. he was self-employed and worked in "security systems". He indicated that his highest level of education was one year of college. As discussed in detail above, the Veteran has a lengthy history of impairment related to his lumbar spine disability and associated radiculopathy. The medical record, dating back to 2013, indicates that the Veteran had a history of frequent falls and that he was issued a rollator walker for gait and balance issues. Additionally, VA treatment records indicate that the Veteran was issued a wheelchair as early as March 2010. At the time of a September 2012 VA examination, the functional impact of the Veteran's spine condition was noted as increased pain with prolonged sitting, standing, bending, and lifting. During an April 2015 examination of the Veteran's lumbar spine, he was noted to be unable to stand, walk, and sit in chairs for prolonged periods. During a January 2019 examination of the Veteran's peripheral nerves, he reported trouble getting in and out of the car, falling often, and needing help getting out of bed. The medical evidence of record also includes a May 2018 private medical opinion from Dr. W.M., who indicated that he had been treating the Veteran since January 2018. Dr. W. M. opined that the Veteran was unable to find and sustain suitable employment due to his service-connected disabilities. He further indicated that the Veteran is limited to normal daily physical activities and is disabled. See Medical Treatment Record Non-Government Facility, submitted May 29, 2018. The Veteran also submitted a private medical opinion from Dr. V.B. in August 2018. Dr. V.B. noted that he had been treating the Veteran since May 2017, to include his low back pain and sciatica, and noted the Veteran's history of his leg giving out and falling. While Dr. V.B. considered non-service connected conditions in reaching his conclusion, he determined that the Veteran was unable to sustain gainful employment at least partly due to his service-connected lumbar spine disability and associated radiculopathy. See Medical Treatment Record Non-Government Facility, submitted August 16, 2018. At the time of the Veteran's April 2021 hearing, he testified that he last worked 7-9 years prior, but that he stopped due to his leg condition. He further testified that he could no longer drive his truck due to the same. He reported that he constantly needed someone with him due to the risk of falls, that he had issues sitting for a prolonged period and never worked a sedentary job, and that his pain medication caused issues with concentration. In this case, the Board finds that the medical evidence of record supports a finding that the functional impairment caused by the Veteran's service-connected disabilities prevents him from securing and following substantially gainful employment. Notably, the record indicates that he falls often, is unable to stand and walk for prolonged periods, and also uses a cane, walker, and wheelchair. Additionally, his service-connected disabilities would also present difficulty in working a job that required him to remain seated, as he endorses an inability to sit for a prolonged period. Further, concentration issues caused by the Veteran's pain medication would also impact his ability to pursue employment of any kind. Finally, the Veteran's history, education, skills, and training, support a finding that he was unable to secure or follow substantially gainful employment for the period in question. As noted above, his highest level of education was one year of college. Further, there is no indication in the record that the Veteran possesses any transferable skills from prior employment that would allow him to secure and follow a substantially gainful occupation, given the functional impairment related to his service-connected disabilities. For the reasons stated above, the Board finds that the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment for the period from April 11, 2012, to November 11, 2020, and assignment of a TDIU is warranted for the period in question. REASONS FOR REMAND Entitlement to service connection for prostate cancer is remanded. The Veteran contends that he suffers from prostate cancer as result of herbicide exposure while serving at Fort Polk, Louisiana. Specifically, he contends that Agent Orange was used at Fort Polk to clear an area where he was required to build a pond. The Veteran is not shown to have served in Vietnam, or to have qualifying service in Thailand or Korea, and he is therefore not presumed to have been exposed to herbicides such as Agent Orange. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. However, this does not preclude a Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Regarding claims based on exposure to herbicide agents in locations other than Vietnam, Korean DMZ, or Thailand, the AOJ is directed to send an e-mail with the dates, location, and circumstances of claimed herbicide exposure to Compensation Service and request a review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as claimed. If the Compensation Service is unable to confirm that the herbicides were so used, then the information is to be submitted to the appropriate records custodian to determine whether such exposure can be verified. There is no indication in the record that the AOJ has undertaken such development of the Veteran's claim. Accordingly, remand is warranted. Additionally, during his April 2021 hearing, the Veteran's representative indicated that she would submit evidence concerning a lawsuit that had been filed based on contaminated water at Fort Polk due to Agent Orange. The Veteran's representative submitted a correspondence in April 2021, that included what appeared to be information from the US Environmental Protection Agency's website concerning Fort Polk. However, the correspondence did not contain evidence related to herbicide exposure, and the Veteran's representative did not otherwise indicate what the correspondence tended to prove in relation to the Veteran's claim. Given the case must be remanded for additional development, the Board finds that an attempt to further clarify the evidence of record is also appropriate. The matters are REMANDED for the following action: 1. Afford the Veteran and/or his representative an opportunity to clarify the evidence submitted in April 2021 regarding the use of herbicides at Fort Polk, Louisiana. 2. Then, the AOJ must attempt to verify the Veteran's exposure to herbicides at Fort Polk, Louisiana, on a factual basis. The AOJ should follow the appropriate steps listed in the Table in the VBA Live Manual. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, Topic 7, Block a (November 21, 2016) - (Table for Verifying Herbicide Exposure on a Factual Basis in Other Locations). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.