Citation Nr: 21008869 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-45 212 DATE: February 18, 2021 ORDER Entitlement to an increased rating in excess of 40 percent for right L5 partial hemilaminectomy with LE-S1 discectomy (low back disability) is denied. Entitlement to an initial rating of 40 percent, but no higher, for right lower extremity (RLE) radiculopathy, sciatic nerve, is granted effective February 21, 2012; there is no earlier sciatic nerve involvement. Entitlement to an initial rating of 20 percent, but no higher, for RLE radiculopathy, femoral nerve, is granted effective December 27, 2011. Entitlement to an initial rating higher than 10 percent prior to December 27, 2011 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted effective February 21, 2012. REMANDED The claim of entitlement to a TDIU prior to February 21, 2012, is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the preponderance of the evidence shows that the Veteran’s lumbosacral strain has not resulted in unfavorable ankylosis of the entire thoracolumbar spine or entire spine. 2. In a December 2012 rating decision, the AOJ granted service connection for RLE radiculopathy of the sciatic nerve with an initial rating of 20 percent effective from February 21, 2012. There is no earlier competent evidence of sciatic nerve involvement. 3. The Veteran’s RLE radiculopathy of the tibial nerve is now considered under the criteria for the femoral nerve. His RLE radiculopathy of the femoral nerve manifested by moderate incomplete paralysis starting December 27, 2011. Prior to December 27, 2011, his RLE radiculopathy of the femoral nerve manifested as mild incomplete paralysis. 4. The service-connected disabilities are shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background starting February 21, 2012, when he meets the schedular criteria for entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a 40 percent initial rating, but no higher, for RLE radiculopathy, sciatic nerve, have been met effective from February 21, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1-4.7, 4.10-4.14, 4.21, 4.124a, DC 8620. 3. The criteria for an initial rating of 20 percent, but no higher, for RLE radiculopathy, femoral nerve, effective December 27, 2011, have been met. The criteria for an initial rating higher than 10 percent prior to December 27, 2011, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.400, 4.71a, 4.124a DC 8626, 8625. 4. The criteria for entitlement to a TDIU have been met effective December 27, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to September 1989. The matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Subsequently, the issues of entitlement to increased rating for the back, to increased initial rating for radiculopathy, to a TDIU, and to service connection for the left knee and right foot were remanded by the Board in May 2019 for further development. Since then, the Veteran’s right foot was granted service connection as being directly related to his low back disability, and part of his service-connected radiculopathy. His left knee was also granted service connection. Therefore, these service connection claims are no longer before the Board; however, the ratings claims have returned for further review. Given the rather complex procedural history of these ratings claims, discussion of the procedural history would be helpful prior to consideration of whether the ratings for each disability should be increased. The Veteran’s claim for an increased rating for the low back disability has been pending since February 8, 2011, the date of receipt of his statement asking for increased rating for his back. The resulting August 2011 rating decision was not appealed, but is not final, because the Veteran filed a February 2012 statement that resulted in development, including a March 2012 VA back examination. That examination resulted in new and material evidence relevant to the August 2011 rating decision, and is therefore considered part of that original claim. 38 C.F.R. § 3.156(b). Following the February 2012 claim development, a December 2012 rating decision (addressing the ratings for the back and radiculopathies, and TDIU) was issued, to which he did not appeal. Thereafter, a January 2013 rating decision was issued, proposing to reduce the rating for his back (which was ultimately achieved, but then restored for the entire period, and not on appeal). He immediately appealed this reduction, and appealed the denial of TDIU in June 2013. In November 2013, records from the Social Security Administration (SSA) were received, which showed he was disabled because of his back. These records were relevant to all of the issues on the December 2012 and January 2013 ratings, therefore those issues were not finalized, even though the Veteran did not file a NOD (notice of disagreement) for every issue. Id. Thereafter, in November 2013, an SOC (statement of the case) was issued on entitlement to TDIU. He filed a request to withdraw his NOD as to the denial of TDIU later that month, and in December 2013, he filed another claim for increased ratings for his service-connected disabilities, and for a TDIU. The Board notes that his withdrawal of the NOD pertaining to his previous TDIU claim did not affect the issues that were still pending from the non-finalized December 2012 and January 2013 ratings, increased ratings for the back and associated radiculopathies. Further, although he had withdrawn his NOD pertaining to the TDIU denial, as he has filed another TDIU claim, which he asserts is due to his back, that claim is considered to be part and parcel of the claim for increased rating for the back, which has been pending since February 8, 2011. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Since that claim for a higher rating for the low back was filed, the Veteran has been separately service connected for two different radiculopathies associated with the service-connected back, and these issues are also on appeal. In regard to the radiculopathies in particular, the Veteran was granted service connection for tibial nerve radiculopathy under DC 8625, effective February 8, 2011. Thereafter, in December 2012, the AOJ granted service connection for sciatic radiculopathy at 20 percent under DC 8620, effective from February 21, 2012. Later rating decisions did not show he had been granted two separate ratings for different radiculopathies. There is no indication that steps were taken to cancel this decision or that it was issued in error. Accordingly, the December 2012 rating decision and code sheet must control as to when sciatic radiculopathy was granted service connection. Subsequently, the AOJ did not discover error regarding previously assigning a rating under DC 8620, because the April 2020 rating decision changed the disease name and diagnostic code of the originally-service-connected tibial radiculopathy from DC 8625 to sciatic radiculopathy under DC 8620, and granted a separate rating for femoral radiculopathy under DC 8626 effective December 5, 2013. Given that he already was service connected for sciatic radiculopathy, it was not possible to change tibial radiculopathy to sciatic radiculopathy, because that would have effectively cancelled out the fact that he had two separate ratings for different types of radiculopathy for the period from February 21, 2012, to December 4, 2013. The Board finds that since DC 8620 was already being used, the previously named tibial radiculopathy under DC 8625 will be considered under the newly assigned DC 8626. The Board notes that the record does not show he has been diagnosed with femoral neuropathy, but that it was granted service connection by the AOJ as an analogous rating responsive to the Veteran’s claim for right foot disability, which he asserted was related to the back. 38 C.F.R. § 4.20. The symptoms rated under DCs 8620 through 8625 all cover the muscles in the feet and lower leg, and to have separate ratings under more than one of these DCs would result in pyramiding. DC 8626 refers to symptoms in the upper leg, as discussed in more detail below. The Board notes the above discussion and clarification of when sciatic radiculopathy was granted, and what code was being changed, is beneficial to the Veteran for two reasons. One, rating his separate radiculopathies under DCs 8620 and 8626 afford the potential for a higher rating than if rated under DCs 8620 and 8625, because they each provide for higher compensation than the other DCs of the peripheral nerves. Two, this gives him an earlier effective date for his second separate radiculopathy than as presented on the April 2020 code sheet. Accordingly, the Veteran’s current disability ratings of the back and radiculopathies, as corrected in discussion above, are as follows: the low back disability is rated under DC 5237, with 40 percent effective February 8, 2011, and 10 percent prior; RLE sciatic nerve radiculopathy is rated under DC 8620, with 20 percent effect February 21, 2012; and, RLE femoral nerve radiculopathy under DC 8626 (previously tibial nerve radiculopathy under DC 8625), rated as 10 percent from February 8, 2011, to February 20, 2012, and rated as 20 percent from February 21, 2012. The issues considered below are whether he is entitled to higher ratings, including a TDIU, based on the evidence of record. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Entitlement to an increased rating in excess of 40 percent for right L5 partial hemilaminectomy with LE-S1 discectomy. The Veteran contends he is entitled to increased ratings for his service-connected low back disability because such is more severe than as reflected by the currently assigned ratings. Throughout the appellate period, the Veteran’s low back has been in receipt of a 40 percent rating effective February 8, 2011, under Diagnostic Code 5237. Diagnostic Code 5237 is part of the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board finds that the Veteran’s lumbosacral strain does not warrant an increased rating in excess of 40 percent. To warrant a rating higher than 40 percent under the General Rating Formula the Veteran’s lumbosacral strain must manifest in unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. In this case, the VA treatment records and VA examination reports do not indicate the presence of ankylosis in the Veteran’s spine at any point. The Veteran has not asserted his spine is ankylosed. Therefore, a rating higher than 40 percent is not warranted. The Board also notes that as 40 percent is the highest available rating for limited motion of the spine that does not require ankylosis, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Note (1) to the General 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. In this case, the Veteran has been diagnosed with radiculopathy and has been awarded separate ratings during the pendency of this appeal, as discussed in more detail below. However, the evidence does not show bowel or bladder impairment or any other associated neurologic abnormalities to warrant any additional separate ratings under Note (1). The Board has considered whether the Veteran is entitled to an increased disability rating under an alternative diagnostic code as back disabilities may also be evaluated under Diagnostic Code 5243 for IVDS. The criteria for IVDS rates the disability according to the number of incapacitating episodes suffered per year. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As indicated above, the evidence shows that the Veteran does have IVDS. However, the medical evidence does not show that the Veteran has had any physician prescribed bed rest having a total duration of at least six weeks over a 12-month period, which is required for the next higher 60 percent rating, at any time during the appeal period. The Veteran had a lumbar laminectomy in February 2011. The Board considered whether a temporary total rating due to the need for convalescence was warranted, but the record shows that he was released to go back to work less than one month following his surgery. As he did not require even one month of convalescence, a temporary total rating under 38 C.F.R. § 4.30 is not warranted. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an initial rating of 40 percent, but no higher, for RLE radiculopathy, sciatic nerve, is granted effective February 21, 2012. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (1). The Veteran has been awarded separate ratings for RLE radiculopathy. As mentioned, the most recent rating decision code sheet lists sciatic nerve radiculopathy under DC 8620 as being previously rated under DC 8625 as tibial radiculopathy. Because DC 8620 was already separately assigned to the RLE in an earlier rating decision, the Board finds that it is more beneficial to the Veteran to change his previously rated tibial nerve radiculopathy under DC 8625 to femoral radiculopathy under DC 8626. Accordingly, as set forth further above, the Veteran’s RLE radiculopathy of the sciatic nerve is currently rated 20 percent disabling under DC 8620 effective from February 21, 2012. The Veteran’s RLE sciatic radiculopathy is rated 20 percent under DC 8620, which pertains to neuritis of the sciatic nerve. 38 C.F.R. §§ 4.124a, 4.123. Neuritis of the sciatic nerve utilizes the same criteria as DC 8520 and is rated in the same manner, however, the maximum rating that can be assigned to neuritis is that of moderately severe incomplete paralysis (40 percent), unless the neuritis is characterized by organic changes, including loss of reflexes, muscle atrophy, sensory disturbances, and constant pain. 38 C.F.R. § 4.123. Under DC 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Moderately severe incomplete paralysis warrants a 40 percent rating. Severe incomplete paralysis with marked muscle atrophy warrants a 60 percent rating. Complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, flexion of the knee is weakened or (very rarely) lost, warrants an 80 percent rating. 38 C.F.R. § 4.124a. This code therefore addresses the symptoms in the feet, below the knee, and flexion of the knee. The term “incomplete paralysis,” with peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. With regard to radiculopathy, generally, neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The March 2012 VA examination showed Veteran had absent ankle jerk, and the March 2012 private examination (associated with his SSA records) showed 3/5 motor strength with muscle bulk measured 1.5 cm less than the left leg around the ankle area. At the October 2012 VA examination, the Veteran had absent ankle jerk, and an antalgic gate. He reported that he had fallen because of numbness in foot. He was diagnosed with sciatic radiculopathy. In the August 2014 VA examination, the VA examiner noted that the Veteran has radicular pain or other signs of symptoms due to radiculopathy. No constant pain was noted for the RLE. No Intermittent pain was noted for the RLE. Paresthesias and/or dysesthesias was noted as moderate for the RLE. No numbness was noted for the RLE. The sciatic nerve was involved. The examiner categorized the overall severity of his RLE radiculopathy as mild. In the August 2015 VA examination, the VA examiner noted that the Veteran has radicular pain or any other signs or symptoms due to radiculopathy. In particular, it was noted that that there was no constant pain noted for the RLE. Intermittent pain was noted as mild for the RLE. Paresthesias and/or dysesthesias was noted as mild for the RLE. No numbness was noted for the RLE. The sciatic nerve was involved. The examiner categorized the overall severity of his RLE radiculopathy as mild. An October 2014 VA treatment record noted the Veteran had balance troubles due to numbness in toes and weakness in leg. In the November 2019 VA examination, continues to show balance troubles in foot due to sciatic. He uses a cane all the time. Based upon review of the evidence of record, the Veteran’s RLE sciatic radiculopathy is best approximated by the 40 percent criteria, for moderately severe. The record shows he had 3/5 muscle strength and some reduced muscle tone around the ankle in March 2012. He had absent ankle jerk in March 2012 and October 2012. The Veteran was noted have balance troubles and antalgic gait, because of numbness in the foot in October 2012, October 2014, and November 2019. This evidence shows more than sensory symptoms, as he had absent reflexes in the ankle and reduced muscle tone and strength in that area. However, although there was reduced tone, showing some atrophy, the record does not show that he has had marked atrophy, which is required for the next highest rating. Indeed, the March 2012 record is the only record showing any atrophy in the RLE. Accordingly, a 40 percent, but no higher, initial rating (that is, effective from February 21, 2012) for sciatic radiculopathy is warranted. The Board considered whether the Veteran’s RLE radiculopathy of the sciatic nerve manifested earlier than its current effective date of February 21, 2012. However, the record does not show it was diagnosed until the October 2012 VA examination. Prior to that, he was only diagnosed with tibial and peroneal nerve radiculopathy, which is being now being rated under DC 8626. Accordingly, a rating for sciatic nerve radiculopathy is not warranted prior to the current effective date. Entitlement to an initial rating of 20 percent, but no higher, for RLE radiculopathy, femoral nerve, is granted effective December 27, 2011. Entitlement to an initial rating higher than 10 percent prior to December 27, 2011, is denied. As per the discussion above, the Veteran is currently rated for RLE radiculopathy of the femoral nerve under DC 8626, previously as tibial radiculopathy under DC 8625, at 10 percent from February 8, 2011, to February 20, 2012, and at 20 percent starting from February 21, 2012. As above, the Veteran’s RLE radiculopathy of the femoral nerve is rated as neuritis of the femoral nerve. 38 C.F.R. § 4.123. Under DC 8626, mild incomplete paralysis is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of quadriceps extensor muscles is rated 40 percent disabling. 38 C.F.R. 4.124a, DC 8526. This code therefore addresses the symptoms in the leg above the knee. Prior to February 2012 the evidence shows: the Veteran had a laminectomy in February 2011; an April 2011 private treatment record shows pain, tingling, and numbness into the leg; a June 2011 private treatment record shows numbness and tingling after standing all day; the June 2011 VA examination shows pain radiating into leg and decreased sensory but only on the foot, but 5/5 (normal) motor strength, which is still active resistance, and normal reflexes. These symptoms are wholly sensory, and mild. The Board finds they meet the criteria for the currently assigned 10 percent, but no higher. However, review of the record shows that the criteria for a 20 percent rating can be proven back to a December 27, 2011, private treatment record. At that time, the Veteran was diagnosed with intermittent radiculopathy, due to complaints of pain and numbness into the leg causing mildly antalgic gait His symptoms, his doctor scheduled him for an electromyography (EMG).The January 2012 EMG shows the Veteran had “moderately severe” peroneal neuropathy, which the doctor commented was not uncommon after laminectomy. The Board finds the doctor’s unsolicited opinion probative to the severity of the Veteran’s femoral radiculopathy, along with his antalgic gait. The Board finds this evidence more closely approximates the criteria for moderate than mild incomplete paralysis of the femoral nerve. The Board does not find that a rating higher than 20 percent is warranted at any time, as the evidence does not show that his femoral radiculopathy is characterized by the organic changes noted in 38 C.F.R. § 4.123, which is required for a “severe” rating under DC 8626. His reflexes have always been at least 1+, which is not lost. He has not been shown to have muscle atrophy. 38 C.F.R. § 4.123. The January 2012 EMG shows the Veteran has “moderately severe” peroneal neuropathy. The Board notes that “moderately severe” is, by use of the modifier “moderately,” less severe than “severe.” The Veteran was noted to have only a “little” limp at that time. He has pain and numbness and only slightly decreased (1+) achilles reflex, decreased light touch sensation, and 5/5 (normal) strength. The March 2012 VA examination shows Veteran appears slightly unsteady but tests of proprioception were normal. He had normal muscle bulk and tone, normal power, only mild sensory impairment, and 1+ knee jerk, which is reduced but not absent. Indeed, at this examination he was diagnosed with only a sensory radiculopathy. This does not meet the requirements for severe incomplete paralysis. The October 2012 VA back examination shows his strength reduced (4/5) in hip flexion and in knee extension, but no atrophy. He had reduced reflexes (1+), but they were not absent. He had decreased sensation in the upper thigh and knee, but sensation was not absent. He had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The October 2012 VA peripheral nerves examination shows complaints of numbness and tingling. He was assessed with moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. His knee extension strength was 4/5, knee reflex was decreased (1+), he had no atrophy. His sensation was decreased but not absent on the thigh and knee. He was diagnosed with external popliteal (common peroneal) and posterior tibial nerve radiculopathy of moderate severity. These symptoms do not meet the criteria for a 30 percent. In the April 2014 VA exam the Veteran has complaints of numbness and pain, but not weakness. He has 4/5 hip flexion, and knee extension, decreased sensory in right leg, with reflexes 2/4 knee, and normal tone and no atrophy. Decreased reflex are not lost, and 4/5 is still active motion. No atrophy tone and no atrophy. The August 2014 back VA exam shows he had normal muscle, sensory, reflexes, with moderate paresthesias/dysesthesias. The August 2015 peripheral nerves conditions DBQ shows intermittent pain was mild. His knee extension was 5/5, with knee reflex (2+). He was diagnosed with anterior tibial, internal popliteal, and posterior tibial which were all mild. The August 2015 back VA exam shows he had pain like needles in the foot and numbness. His muscle reflex sensory was normal, with mild intermittent pain and paresthesias/dysesthesias. He was diagnosed with mild radiculopathy. The November 2019 peripheral nerves conditions DBQ shows he had constant pain and numbness with intermittent periods of tingling, stabbing, and shooting pain, with moderate intermittent pain, paresthesias/dysesthesias, and numbness. His muscle strength knee extension was 4/5, with no atrophy, reflex knee (1+), with sensory decreased thigh/knee. The November 2019 back VA exam shows He has constant numbness, from butt to toes. He relies heavily on his left side for weight bearing, pain shoots to his foot. The numbness never goes away, and he has weakened movement. His muscle strength is 4/5 hip flexion and knee extension, with reflex knee (1+). His sensory thigh/knee is decreased, with moderate intermittent pain paresthesias/dysesthesias, and numbness. His radiculopathy was moderate. Decreased reflex are not lost. There is no atrophy, and 4/5 is still active motion. Accordingly, a 30 percent rating is not warranted. The Board notes the Veteran has been diagnosed with multiple types of RLE radiculopathy during the pendency of this claim, including of the sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior tibial nerves. The sciatic nerve (Diagnostic Codes 8520, 8620 and 8720), the external popliteal nerve (common peroneal) (Diagnostic Codes 8521, 8621 and 8721), the musculocutaneous nerve (Diagnostic Codes 8522, 8622 and 8722), the anterior tibial nerve (deep peroneal) (Diagnostic Codes 8523, 8623, 8723), the internal popliteal nerve (tibial) (Diagnostic Codes 8524, 8624, and 8724), and the posterior tibial nerve (Diagnostic Codes 8525, 8625, and 8725) affect the reflexes, sensation, and motor function of feet and toes, ankle, and lower leg, as well as knee flexion. Assigning separate ratings from within these nerve branches is not warranted as it would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Here, all of the symptoms attributable to each diagnosed radiculopathy that could be rated with any of the DCs 8620 through 8625 have been compensated for under his rating under DC 8620. Notably, the Board reiterates that the Veteran has not been diagnosed with femoral radiculopathy, which rates symptoms above the knee, but this was assigned by the AOJ in order to provide compensation for neurological symptoms in the foot. The Board will not disturb this rating, as it has the potential for a higher rating than the previously applied DC 8625. Accordingly, the Board finds that the initial rating of 10 percent, previously under DC 8625 but currently under DC 8626, effective from February 8, 2011, shall not be disturbed. His 20 percent shall be effective from December 27, 2011. Entitlement to a TDIU is granted, effective February 21, 2012. Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 as totally disabled. The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. During the appeal the Veteran was granted TDIU effective December 5, 2013, in an April 16, 2020 rating decision, based on when he met the schedular requirements for a TDIU. Veteran’s February 2015 VA 21-4138 Statement in Support of Claim states he has not worked since January 2011 and the sole cause is his service connected back injury. The Veteran testified at the hearing held in December 2018, that he is unable to work due to his service-connected back. The Veteran has a high school education, and his previous work experience is factory work and as a bus driver. The SSA found the Veteran was totally disabled under their regulations as of March 31, 2012, due to disorders of the back. The September 2012 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits completed by Hyundai, shows Veteran last worked on January 21, 2011, as a Production Team Member. It shows he was paid until February 2012. The October 2012 VA exam opinion states, “solely based on his service connected conditions, it is less likely as not that the veteran could return to his previous occupation working in a job description requiring strenuous labor. The veteran has had lumbar disc surgery and continues to have neuropathy symptoms radiating down his right lower extremity (walks with mildly antalgic gait with use of a cane).” The record shows that the Veteran left factory work assembling vehicles in January 2011 due to his back. He had a lumbar laminectomy in February 2011, after which he was not able to return to work, as his work would not provide him any lighter duty accommodations. He received workers’ compensation (or similar benefits) thereafter, but his employer has affirmed that he stopped working in January 2011 due to his service-connected disability. Accordingly, as of this decision, he meets the schedular requirements for a TDIU as of February 21, 2012. The record clearly shows he stopped working and was unable to return to his previous job due to his back. His TDIU is therefore warranted from February 21, 2012. REASONS FOR REMAND Entitlement to a TDIU prior to February 21, 2012, is remanded. The issue of whether the Veteran’s service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment prior to the current effective date of February 21, 2012, remains. The claim must be remanded for the period prior to February 21, 2012, for a referral to the Director of the Compensation Service for extraschedular consideration of TDIU. The Board is not permitted to make an extraschedular decision in the first instance. The matters are REMANDED for the following action: Forward the claims file to the Director of the Compensation Service for consideration of TDIU prior to February 21, 2012, on an extraschedular business. Ensure that all appropriate notification is sent to the Veteran and his representative in connection with this directive Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ottley III 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.