Citation Nr: 21012659 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 12-19 411 DATE: March 4, 2021 ORDER Entitlement to a higher rating for lumbar laminectomy with intervertebral disc syndrome (IVDS), currently rated as 40 percent disabling before August 1, 2017, and 20 percent disabling thereafter is denied. Entitlement to a higher rating for recurrent ganglion cyst on the left wrist, currently rated as noncompensable prior to March 15, 2013, and 10 percent disabling thereafter is denied. Entitlement to a higher rating for radiculopathy of the femoral nerve of the right lower extremity, currently rated as 20 percent disabling from August 1, 2017 is denied. Entitlement to a higher rating for the left femoral nerve of the left lower extremity, currently rated as 20 percent disabling from August 1, 2017 is denied. Entitlement to a separate rating of 10 percent and no higher for sciatic radiculopathy of the right lower extremity effective January 7, 2010, is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating higher than 20 percent for sciatic radiculopathy of the right lower extremity from August 1, 2017 is denied. Entitlement to a separate rating of 10 percent and no higher for sciatic radiculopathy of the left lower extremity effective January 7, 2010 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating higher than 20 percent for sciatic radiculopathy of the left lower extremity from August 1, 2017 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 1, 2016 is denied. FINDINGS OF FACT 1. The Veteran’s lumbar laminectomy with IVDS is manifest by incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period prior to August 1, 2017, and is manifest by painful motion that does not limit the Veteran’s forward flexion to 30 degrees or less thereafter. 2. The Veteran’s recurrent ganglion cyst resulted in no functional impairment prior to March 15, 2013, and pain thereafter. 3. The Veteran’s radiculopathy of the femoral nerve of the right lower extremity is manifest by moderate incomplete paralysis of the femoral nerve effective August 1, 2017. 4. The Veteran’s radiculopathy of the femoral nerve of the left lower extremity is manifest by moderate incomplete paralysis of the femoral nerve effective August 1, 2017. 5. From January 7, 2010, the Veteran’s sciatic radiculopathy of the right lower extremity was manifest by radiating pain indicative of mild incomplete paralysis of the sciatic nerve. 6. From August 1, 2017, the Veteran’s radiculopathy of the right lower extremity was manifest by moderate incomplete paralysis of the sciatic nerve. 7. From January 7, 2010, the Veteran’s sciatic radiculopathy of the left lower extremity was manifest by radiating pain indicative of mild incomplete paralysis of the sciatic nerve. 8. From August 1, 2017, the Veteran’s radiculopathy of the left lower extremity was manifest by moderate incomplete paralysis of the sciatic nerve. 9. Prior to December 1, 2016, the Veteran’s service-connected disabilities did not prevent her from obtaining and maintaining substantially gainful employment consistent with her education and occupational background. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar laminectomy with IVDS prior to August 1, 2017, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243 (2020); DC 5243 (85 Fed. Reg. 76, 453 (November 30, 2020)). 2. The criteria for a compensable rating prior to March 14, 2013, and a rating higher than 10 percent thereafter, for recurrent ganglion cyst on the left wrist have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5215. 3. The criteria for a disability rating in excess of 20 percent for radiculopathy of the femoral nerve of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 4. The criteria for a disability rating in excess of 20 percent for radiculopathy of the femoral nerve of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 5. The criteria for a separate rating of 10 percent for radiculopathy of the sciatic nerve of the right lower extremity effective January 7, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 6. The criteria for a rating higher than 20 percent for radiculopathy of the sciatic nerve of the right lower extremity from August 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 7. The criteria for a separate rating of 10 percent for radiculopathy of the sciatic nerve of the left lower extremity effective January 7, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 8. The criteria for a rating higher than 20 percent for radiculopathy of the sciatic nerve of the left lower extremity from August 1, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 9. The criteria for entitlement to a TDIU have not been met prior to December 1, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1991 to February 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2013. A transcript of that hearing is of record. These matters were most recently remanded in June 2018. The Board finds there has been substantial compliance with its remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). A November 2020 rating decision assigned a 40 percent for lumbar laminectomy with IVDS prior to August 1, 2017; assigned a 20 percent rating for radiculopathy of the sciatic nerve of the left lower extremity effective August 1, 2017; assigned a 20 percent rating for radiculopathy of the sciatic nerve of the right lower extremity effective August 1, 2017; assigned a separate rating of 20 percent for radiculopathy of the femoral nerve of the left lower extremity effective August 1, 2017; assigned a separate rating of 20 percent for radiculopathy of the femoral nerve of the right lower extremity effective August 1, 2017; and assigned an effective date of December 1, 2016 for entitlement to a TDIU. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran’s disability, 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 1. Entitlement to a higher rating for lumbar laminectomy with IVDS, currently rated as 40 percent disabling before August 1, 2017, and 20 percent disabling thereafter The Veteran contends that she is entitled to a higher rating because of her back pain, which has at times caused a doctor to tell her to stop all activities. During the pendency of the Veteran’s claim and appeal, the criteria for rating back disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran’s lumbar laminectomy with IVDS is currently rated under the old version of 38 C.F.R. § 4.71a, DC 5243. DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 of the 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 the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1 Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. The revised rating criteria for DC 5242 is as follows: Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (see either DC 5003 or 5010). The revised DC 5243 reads: Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. Prior to August 1, 2017, the Veteran’s low back disability has been assigned a 40 percent rating. The preponderance of the evidence is against the assignment of a rating higher than 40 percent during this time period. The Veteran testified in her March 2013 hearing that there have been instances where the doctor told her to stop all activities due to her back pain. The Board notes that a January 2010 VA treatment note indicates that the Veteran was prescribed complete bed rest with a follow-up in 3-4 weeks. There is no indication in the record that the Veteran’s prescribed bed rest lasted longer than the 3-4 weeks indicated by this note, nor has bed rest been prescribed for a longer period elsewhere in the record, much less a period of at least 6 weeks as would be required for a higher rating. Although March 2013 Family Medical Leave Act (FMLA) paperwork indicates that the Veteran was described as incapacitated due to her back condition, this paperwork is discussing incapacitation in the context of medical excuse from work, not prescribed bed rest. The rating criteria specifically defines incapacitating episodes as requiring bed rest prescribed by a physician. Therefore, there are no grounds to assign a rating higher than 40 percent based upon incapacitating episodes. The record prior to August 1, 2017, does not contain any evidence of unfavorable ankylosis of the entire thoracolumbar spine, which is what would be required to assign a rating higher than 40 percent. Therefore, there is no basis to assign a higher rating under the General Rating Formula for Diseases and Injuries of the Spine. The Board notes that the Veteran has already been assigned the highest rating possible based upon limitation of motion for this period, and thus any failure to describe limitation of motion during flare ups or after repeated use over time in VA examinations from this period does not impact the rating assigned. The Veteran has been assigned a 20 percent rating for his low back disability from August 1, 2017. During this period, there is no indication that the Veteran was prescribed bed rest by a physician to treat her back pain. Therefore, she does not meet the requirements for a rating higher than 30 percent under the Formula for Rating IVDS Based on Incapacitating Episodes. The most severe limitation of motion shown in the record is the September 2020 VA examination finding that the Veteran’s flexion was limited to 70 degrees. This is far from the limitation of 30 degrees or less that is required for the assignment of a rating higher than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. The Board recognizes that the September 2020 VA examiner was not able to describe the Veteran’s limitation of range of motion after repeated use over time or during flare-ups. The examiner explained that she was unable to do so without mere speculation because the Veteran was not examined during a flare up or after repeated use over time, and could not describe or demonstrate the decrease in range of motion during flare up or after repeated use over time. This explanation indicates that the examiner elicited a description of limitation of motion during flare ups and after repeated use over time from the Veteran, but that the Veteran was unable to describe her limitations with enough specificity to allow the examiner to translate her description into degrees of limitation of motion. The examiner thus made every attempt to provide the requested information, but explained that it was not feasible in this case. Therefore, the Board finds that the examination is adequate and complies with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds that the preponderance of the evidence is against the assignment of a rating higher than 40 prior to August 1, 2017, or higher than 20 percent afterwards. The Veteran’s claim must be denied. 2. Entitlement to a separate rating of 10 percent and no higher for sciatic radiculopathy of the right lower extremity from January 7, 2010 3. Entitlement to a separate rating of 10 percent and no higher for sciatic radiculopathy of the left lower extremity from January 7, 2010 The Board finds that the Veteran is entitled to a separate rating of 10 percent for sciatic radiculopathy of each lower extremity effective January 7, 2010. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. When deciding an increased rating claim, the Board can consider evidence back to the date of claim, and can also look back on evidence within one year before the date of claim. 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In this case, the earliest reference to radiculopathy is a January 7, 2010 VA treatment note, which falls within the one-year look-back period. The January 7, 2010 VA treatment note indicates complaints of lower back pain radiating down the buttocks and legs. Although the Veteran’s bilateral radiculopathy was not identified on VA examinations until August 1, 2017, the Veteran reported radicular symptoms throughout the period on appeal in both VA and private treatment notes, starting on January 7, 2010. An April 2013 VA treatment note found that the Veteran had bilateral L5 radiculopathies, which, according to VA examination forms, relates to the sciatic nerve. Because the Veteran has reported radicular symptoms since January 7, 2010, the Board will assign the Veteran a rating of 10 percent each for sciatic radiculopathy of the right and left lower extremities. The preponderance of the evidence is against finding that the Veteran’s radiculopathy was more than mild during this period because, although the Veteran reported radicular symptoms, VA examiners found no that there were no neurologic deficits to support radiculopathy or that there were no signs or symptoms of radiculopathy. For the foregoing reason, the Board assigns a rating of 10 percent and no higher for sciatic radiculopathy of the right lower extremity and left lower extremity respectively from January 7, 2010. 4. Entitlement to a rating higher than 20 percent for sciatic radiculopathy of the right lower extremity from August 1, 2017 5. Entitlement to a rating higher than 20 percent for sciatic radiculopathy of the left lower extremity from August 1, 2017 The Veteran contends that he should receive a rating higher than 20 percent each for her sciatic radiculopathy of the bilateral lower extremities. The Board finds that the Veteran’s bilateral sciatic radiculopathy is no more than moderate from August 1, 2017. The August 1, 2017 VA examination found normal muscle strength and no muscle atrophy. Reflexes were normal with the exception of hypoactive reflexes for the bilateral ankles. A sensory exam showed decreased sensation bilaterally in the upper anterior thigh, thigh/knee, and lower leg/ankle. The Veteran reported moderate intermittent pain bilaterally, severe paresthesias and/or dysesthesias bilaterally, and severe numbness bilaterally. The examiner described the severity of the Veteran’s radiculopathy as mild bilaterally. A September 2020 VA examination found normal strength with the exception of bilateral hip flexion, which was decreased to 4/5. There was no muscle atrophy. Reflexes were normal. There was decreased sensation in the left lower leg/ankle and foot/toes. The Veteran reported severe constant pain in the right lower extremity, mild intermittent pain in the right lower extremity and moderate intermittent pain in the left lower extremity, severe paresthesias and/or dysesthesias in the right lower extremity and moderate paresthesias and/or dysesthesias in the left lower extremity, and moderate numbness bilaterally. The examiner described moderate radiculopathy in the right lower extremity and mild radiculopathy in the left lower extremity. Although the Veteran has reported severe paresthesias and/or dysesthesias and numbness, and severe pain in the right extremity, neither VA examiner has described the severity of the Veteran’s radiculopathy as more than moderate. Although the Veteran’s radiculopathy is not wholly sensory, the bilateral hypoactive reflexes of the ankle in August 2017 were no longer present in September 2020, and the decrease in strength of bilateral hip flexion shown in September 2020 was a relatively minor decrease to 4/5, or active movement against some resistance. Therefore, the non-sensory aspect of the Veteran’s radiculopathy is intermittent and relatively mild. The Board thus finds that the Veteran’s radiculopathy is best described as moderate, not moderately severe. As such, entitlement to a rating higher than 20 percent each for sciatic radiculopathy of the right and left lower extremities is denied. 6. Entitlement to a higher rating for radiculopathy of the femoral nerve of the right lower extremity, currently rated as 20 percent disabling from August 1, 2017 7. Entitlement to a higher rating for radiculopathy of the left femoral nerve, currently rated as 20 percent disabling from August 1, 2017 The Veteran has been assigned a separate rating of 20 percent each for radiculopathy of the femoral nerve of the right lower extremity and left lower extremity, from August 1, 2017. Paralysis of the anterior crural nerve (femoral) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8526. Under these criteria, 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 quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. As noted above, although the Veteran’s symptoms are not wholly sensory, they are described as more than moderate by any examiner. The non-sensory radicular symptoms are relatively mild and intermittent. There is no muscle atrophy. Therefore, the Veteran does not meet the criteria of severe incomplete paralysis of the anterior crural nerve. Moreover, the record does not distinguish the radicular symptoms attributed to the Veteran’s femoral nerve from the radicular symptoms attributed to her sciatic nerve. Therefore, attributing a separate rating prior to August 1, 2017 for symptoms that have already been contemplated by the ratings assigned for bilateral sciatic radiculopathy would be to evaluate the same disability and symptoms under multiple diagnoses, which is to be avoided. 38 C.F.R. § 4.14.; Esteban v. Brown, 6 Vet. App. 259 (1994). For the foregoing reasons, the Veteran’s claims for a rating higher than 20 percent each for radiculopathy of the femoral nerve of the right and left lower extremities is denied. 8. Entitlement to a higher rating for recurrent ganglion cyst on the left wrist, currently rated as noncompensable prior to March 15, 2013, and 10 percent disabling thereafter The Veteran contends that she is entitled to a higher rating for her recurrent ganglion cyst on the left wrist because it is painful and interferes with her ability to move and lift things with her wrist. The Veteran’s recurrent ganglion cyst on the left wrist is rated under DC 7819. DC 7819 contemplates benign skin neoplasms, and instructs VA to rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or impairment of function. 38 C.F.R. § 4.118, DC 7819. In this case, the Veteran’s symptoms are entirely based upon impairment of function of the wrist. Limitation of motion of the wrist is rated under DC 5215. A 10 percent rating is assigned for palmar flexion limited in line with forearm, or dorsiflexion less than 15 degrees. 38 C.F.R. § 4.71a, DC 5215. A higher rating is available for ankylosis of the wrist under DC 5214. Favorable ankylosis in 20 to 30 degrees of dorsiflexion is assigned a 30 percent rating for the major extremity and 20 percent rating for the minor extremity. Ankylosis in any other position except favorable is assigned 40 percent for the major extremity and 30 percent for the minor extremity. Unfavorable ankylosis in any degree of palmar flexion or with ulnar or radial deviation is assigned a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity. 38 C.F.R. § 4.71a, DC 5214. Prior to March 15, 2013, the Veteran reported swelling in an August 2010 examination. The examiner found no impairment of the left wrist function, and was unable to feel the swelling described by the Veteran, or observe any alteration of the skin. The examiner found normal range of motion. As there is no record of functional impairment prior to March 15, 2013, the Board must deny entitlement to a compensable rating. From March 15, 2013, the Veteran is assigned a 10 percent rating based upon her report of pain in the March 2013 hearing. She described pain or soreness interfering with the range of motion of her wrist and ability to lift. Neither examinations of record during this period indicate that the Veteran has ankylosis her left wrist. The Veteran’s description of her symptoms of difficulty lifting objects and moving her wrist are contemplated by the 10 percent she has already been assigned, and are not the functional equivalent of ankylosis. Therefore, the Board finds that entitlement to a rating higher than 10 percent from March 15, 2013, must be denied. 9. Entitlement to a TDIU prior to December 1, 2016 The Veteran contends that her service-connected disabilities prevented her from obtaining and maintaining substantially gainful employment prior to December 1, 2016. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In this case, prior to December 1, 2016, the Veteran was service-connected for bipolar disorder (rated as 30 percent disabling from December 18, 2015 to May 24, 2016; 70 percent disabling from May 24, 2016); lumbar laminectomy with IVDS (40 percent disabling), radiculopathy of the sciatic nerve of the left lower extremity (10 percent disabling from ), radiculopathy of the sciatic nerve of the right lower extremity (10 percent disabling), right hip osteoarthritis (10 percent disabling), left hip osteoarthritis (10 percent disabling), recurrent ganglion cyst of the left wrist (noncompensable prior to March 15, 2013; 10 percent disabling thereafter); lipomas of the bilateral calves and left thigh (noncompensable), surgical scar on the lower back (noncompensable), limitation on extension of right hip osteoarthritis (noncompensable), limitation on extension of left hip osteoarthritis (noncompensable), impairment of thigh due to right hip osteoarthritis (noncompensable), and impairment of thigh due to left hip osteoarthritis (noncompensable). The Veteran’s combined rating was 66 percent, which rounds up to 70% and thus meets the schedular requirements for a TDIU, effective March 15, 2013. Therefore, the Veteran met the schedular requirements for part of the period in question, and did not for part of the period in question. The Board will consider the entire period in question to determine whether entitlement to a TDIU might be available on an extraschedular basis. The Veteran has not identified the date that she stopped working. The March 2013 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, indicates that she was fully employed and working 50 hours per week. She indicated that she earned $54,000 in the past year. This income is considerably higher than $12,119, which is the poverty threshold for an individual under the age of 65 in 2013 according to the United States Census Bureau website. Historical Poverty Tables: People and Families – 1959 to 2019 (last accessed February 18, 2021). https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-people.html. Therefore, the Veteran’s employment was not marginal. Although the Veteran herself has not informed the VA of the date that she stopped working, a July 2016 private treatment note indicates she was still working at that time, but was encouraged to consider other work because her current position was exacerbating her back pain. When the SSA granted entitlement to disability benefits, it found that the last date the Veteran took part in substantial gainful activity was December 1, 2016, the disability onset date. The fact that the Veteran was fully employed prior to December 1, 2016, is evidence that her service-connected disabilities did not prevent her from obtaining and maintaining substantially gainful employment prior to that date. Therefore, entitlement to a TDIU prior to December 1, 2016 must be denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.