Citation Nr: 21022895 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-23 061 DCDATE: April 19, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to September 14, 2020, (excepting a period of temporary total disability from July 2, 2012, to August 31, 2012) for a lumbar spine disability is denied. Entitlement to an evaluation of 40 percent, and no greater, beginning September 14, 2020, for a lumbar spine disability is granted. Entitlement to an initial compensable evaluation prior to July 29, 2014, for radiculopathy of the right lower extremity is denied. Entitlement to an evaluation of 10 percent, and no greater, from July 29, 2014, to October 18, 2017, for radiculopathy of the right lower extremity is granted. Entitlement to an evaluation in excess of 20 percent from October 19, 2017, to September 13, 2020, for radiculopathy of the right lower extremity is denied. Entitlement to an evaluation in excess of 40 percent beginning September 14, 2020, for radiculopathy of the right lower extremity is denied. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the right lower extremity affecting the femoral nerve is denied. Entitlement to an initial evaluation of 20 percent prior to September 10, 2014, for radiculopathy of the left lower extremity is granted. Entitlement to an evaluation of 40 percent, and no greater, from September 10, 2014, to September 13, 2020, for radiculopathy of the left lower extremity is granted. Entitlement to an evaluation in excess of 40 percent beginning September 14, 2020, for radiculopathy of the left lower extremity is denied. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity affecting the femoral nerve is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 10, 2014, is denied. Entitlement to a TDIU from September 10, 2014, to September 13, 2020, is granted. FINDINGS OF FACT 1. Prior to September 14, 2020, (excepting the period of temporary total disability from July 2, 2012, to August 31, 2012) the Veteran’s lumbar spine disability manifested in pain and limitation of flexion to, at most, 70 degrees. 2. Beginning September 14, 2020, the Veteran’s lumbar spine disability manifested in pain, limitation of flexion to 65 degrees, and incapacitating events triggered by light lifting. 3. Prior to July 29, 2014, the Veteran’s radiculopathy of the right lower extremity manifested in numbness of the right toes. 4. From July 29, 2014, through October 18, 2017, the Veteran’s radiculopathy of the right lower extremity manifested in numbness of the right toes and intermittent pain radiating through the right lower extremity. 5. From October 19, 2017, through September 13, 2020, Veteran’s radiculopathy of the right lower extremity manifested in wholly sensory symptoms, including numbness and pain. 6. Beginning September 14, 2020, Veteran’s radiculopathy of the right lower extremity involved both the sciatic and femoral nerves, and manifested in numbness, sharp pain, and occasional temporary leg weakness. 7. Prior to September 10, 2014, the Veteran’s radiculopathy of the left lower extremity manifested in numbness, pain, and a sensation of weakness in the leg when walking. 8. Beginning September 10, 2014, the Veteran’s radiculopathy of the left lower extremity manifested in numbness, shooting pain, and leg weakness causing falls. 9. Beginning September 14, 2020, the Veteran’s radiculopathy of the left lower extremity involved both the sciatic and femoral nerves, and manifested in numbness, shooting pain, and leg weakness causing falls. 10. Prior to September 10, 2014, the Veteran’s service-connected disabilities did not preclude sitting for extended periods of time. 11. Beginning September 10, 2014, the Veteran’s service-connected disabilities made walking and standing unpredictably unsafe, and precluded sitting for extended periods of time. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent prior to September 14, 2020, (excepting a period of temporary total disability from July 2, 2012, to August 31, 2012) for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5241. 2. The criteria for an evaluation of 40 percent, and no greater, beginning September 14, 2020, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 5241. 3. The criteria for an initial compensable evaluation prior to July 29, 2014, for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8520. 4. The criteria for an evaluation of 10 percent, and no greater, from July 29, 2014, to October 18, 2017, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8520. 5. The criteria for an evaluation in excess of 20 percent from October 19, 2017, to September 13, 2020, for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8520. 6. The criteria for an evaluation in excess of 40 percent beginning September 14, 2020, for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8520. 7. The criteria for an evaluation in excess of 20 percent beginning September 14, 2020, for radiculopathy of the right lower extremity involving the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8526. 8. The criteria for an evaluation of 20 percent, but no higher, prior to September 10, 2014, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8520. 9. The criteria for an evaluation of 40 percent, but no higher, from September 10, 2014, to September 13, 2020, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8520. 10. The criteria for an evaluation in excess of 40 percent beginning September 14, 2020, for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8520. 11. The criteria for an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity involving the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.124a, Diagnostic Code 8526. 12. The criteria for a TDIU prior to September 10, 2014, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 13. The criteria for a TDIU from September 10, 2014, to September 13, 2020, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1966 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) regarding the issues considered here at a hearing in January 2017. This case was previously before the Board in August 2017 and July 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. The issue of service connection for overactive bladder will be addressed in a separate decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to an initial evaluation in excess of 10 percent prior to September 14, 2020, and in excess of 20 percent thereafter for a lumbar spine disability For his lumbar spine disability, the Veteran is currently in receipt of a 10 percent disability rating under Diagnostic Code (DC) 5241 prior to September 14, 2020, and a 20 percent rating thereafter. The Veteran is in receipt of a 100 percent evaluation for his lumbar spine disability from July 2, 2012, through August 31, 2012, for convalescence from surgery to treat the disability; this period will not be considered in this claim for an increased evaluation for the lumbar spine disability. Spine disabilities are typically rated under the same general formula, except for intervertebral disc syndrome (IVDS), which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5235-5243. Certain changes to the musculoskeletal rating criteria went into effect on February 7, 2021, including to the diagnostic code relevant to IVDS. This code now requires there be disc herniation with compression and/or irritation of the adjacent nerve root. The rating criteria formula remained the same. The Board notes no changes were made to the General Rating Formula for Diseases or Injuries of the Spine or associated diagnostic codes. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent rating for a lumbar spine disability is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal fate or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. All of these evaluations under the general formula for rating spine injuries consider the disabilities 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 for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating 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 disability 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 disability 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, DC 5243. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, a finding of which must be supported by adequate pathology and evidenced by visible behavior on motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability also include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, VA must consider the provisions of 38 C.F.R. § 4.40 and § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-38 (2011). Here, when the Veteran sought treatment for his low back pain, he attended appointments at a VA medical center; there is no indication there are any private treatment records relevant to the severity of the lumbar spine disability during the period on appeal. In March 2010, the Veteran attended a VA spine examination, at which he described experiencing mild to moderate back pain in the midline of the lumbar region that worsens with weightbearing, particularly standing still. The Veteran denied stiffness and flare-ups. The initial range of motion was measured to be 70 degrees in forward flexion, and 30 degrees in extension, left and right lateral flexion, and left and right lateral rotation. There was no additional limitation after three repetitions. Pain was noted in all ranges of motion. No muscle spasm or weakness was noted on the examination, and the Veteran’s gait and posture were noted to be normal. In August 2010, the Veteran complained of chronic low back pain with intermittent flare-ups, worsened by prolonged activity. He reported that the pain was worse during transitions during flare-ups. At a July 2011 VA physical therapy consultation for chronic low back pain, the Veteran reported he had poor tolerance for prolonged standing and for lifting. In April 2013, the Veteran was afforded another VA spine examination, at which he reported intermittent back pain that worsens with more rigorous activity, such as walking farther than 150 feet or climbing more than one flight of stairs. The range of motion was measured to be 75 degrees in forward flexion and 30 degrees in extension, right and left lateral flexion, right and left lateral rotation. There was no additional limitation after three repetitions. Muscle spasm and guarding were not noted on the examination. The examiner identified IVDS, noting less than one week total duration of all acute episodes over the previous 12 months. In August 2015, the Veteran sought further treatment for chronic low back pain at the VA pain clinic. He described pain along the low lumbar paraspinous muscles, and reported that occasionally his “back will go out” for a few days, with increased back pain. The Veteran described the constant pain as aching, shooting, and sharp, exacerbated by sitting and exercise, and improved by walking. In November 2015, the Veteran began receiving periodic epidural steroid injections; in February 2016, at the second steroid injection appointment, he reported that his chronic low back pain was aggravated by bending over. In October 2017, the Veteran was afforded another VA spine examination, at which he reported a constant aching sensation in his lower back at a level of three out of ten. He reported being limited in bending, walking for more than one and a half miles, and trying to stand up from the floor. The range of motion was measured to be 75 degrees in forward flexion and 30 degrees in extension, right and left lateral flexion, right and left lateral rotation. There was no additional limitation after three repetitions, and pain was noted in flexion, causing the limitation of motion. Muscle spasm and guarding were not noted. The examiner identified IVDS, but noted there were no episodes requiring physician-prescribed bedrest in the previous 12 months. The Board notes it found this examination to be inadequate as to its compliance with Correia v. McDonald, 28 Vet. App. 158 (2016); therefore, only the Veteran’s lay reports and clinical findings not implicated in that analysis, such as the initial range of motion, will be considered from this examination. In May 2019, the Veteran reported having increased discomfort in his low back with activity that also required longer recovery periods. In September 2020, the Veteran attended another VA spine examination, at which he reported flare-ups of stabbing pain in his lower back, which lead to his legs giving out on him. He reported that moving in flexion or in lateral rotation, even to pick up something as light as a pencil, would precipitate an incapacitating event where he can barely move. He reported being unable to climb a steep ramp, climb more than one flight of stairs, climb a ladder, and balance himself on narrow, slippery, or uneven surfaces. The Veteran reported difficulty with standing or walking for an extended time, and being unable to kneel, crouch, stoop, or crawl. The examiner noted a low threshold for pain on the Veteran’s back, which was noted to be hypertonic, and light palpation resulted in paresthesia and occasional stabbing pain. The range of motion was measured to be 65 degrees in forward flexion; 20 degrees in extension; 25 degrees in right and left lateral flexion; and 20 degrees in right and left lateral rotation. There was no additional limitation after three repetitions, and pain was noted in flexion, extension, and right and left lateral rotation. The examiner opined there would be an additional ten degrees of limitation in all ranges of motion after repeated use over time or during a flare-up. The examiner noted muscle spasms, a guarded gait, and dependence upon a cane for support and stability. IVDS was not noted. The examiner also opined the low threshold for pain was due to a long term chronic response to repeated damage in the lumbar spine, and that the incapacitating events the Veteran described were due to tension in the back muscles around the lumbar spine causing muscle spasm. Ankylosis and muscle atrophy were not noted at any point during the appeal period. After review of the evidence of record, the Board finds an increased evaluation is warranted for the portion of the period on appeal beginning September 14, 2020, the date of the most recent VA examination. Prior to September 14, 2020, the Veteran’s forward flexion was measured to be limited to, at most, 70 degrees. He consistently and credibly described symptoms of constant pain and flare-ups of pain of greater intensity; other symptoms such as muscle spasm, guarding, and stiffness were not noted during this earlier period. (The Board notes the symptoms related to radiculopathy will be discussed below, as these are compensated under separate diagnostic code.) First, the Board notes that the diagnostic code contemplates pain as part of the criteria, so no increase is merited based on the complaints of pain. Next, the Board finds that no increase for this period is warranted based on the provisions of section 4.40 and 4.45, as the functional loss arising from the reported pain does not approximate the criteria for the next higher evaluation, which is limitation of flexion not greater than 60 degrees, or muscle spasm or guarding resulting in an abnormal gait for spinal contour. Throughout the period prior to September 14, 2020, the Veteran described being limited in function by increased pain, rather than an inability to manipulate his lumbar spine. For instance, at the April 2013 VA examination, the Veteran reported that his limitations in walking or climbing stairs were due to the back pain worsening with rigorous activity. Similarly, although the Veteran reported being limited in bending at the October 2017 VA examination, he was still able to achieve 75 degrees in forward flexion, with no decrease in motion after three repetitions. Therefore, the Board finds that an evaluation in excess of 10 percent is not warranted for the lumbar spine disability prior to September 14, 2020. For the period beginning September 14, 2020, the Board finds that a 40 percent evaluation is warranted. Although the Veteran was measured to have 65 degrees in forward flexion, it was estimated that he would only be able to flex 55 degrees after repeated use or during a flare-up. However, the Veteran also reported incapacitating events, triggered by even light lifting in flexion or lateral rotation, during which he could “barely move.” The Board finds that this type of functional loss approximates less than 30 degrees of forward flexion and, given the low level of activity causing such incapacitation, therefore finds that the severity of the lumbar spine disability corresponds to a 40 percent evaluation. The Veteran did not specify during the September 2020 VA examination how long he had been experiencing this increased severity, and the evidence in the record prior to the September 2020 examination does not reflect symptoms approximating forward flexion of the thoracolumbar spine of 30 degrees or less, so the date of the examination is the earliest date upon which the increased evaluation can be awarded. The Board has considered applying the IVDS rating formula, as there was evidence of IVDS during the appeal period. However, the record does not reflect incapacitating episodes requiring physician-prescribed bedrest having a total duration of greater than two weeks prior to September 14, 2020, or greater than six weeks after September 14, 2020. Therefore, no higher evaluation is available to the Veteran using the IVDS rating schedule. In summary, the Board finds the appropriate evaluations for the Veteran’s lumbar spine disability are a 10 percent evaluation prior to September 14, 2020, and a 40 percent evaluation thereafter. 2. Entitlement to increased evaluations for radiculopathy of the right lower extremity The Veteran is in receipt of two evaluations for radiculopathy of the right lower extremity. The first is a noncompensable rating from March 8, 2012, to October 18, 2017; a 20 percent rating from October 19, 2017, to September 13, 2020; and a 40 percent rating beginning September 14, 2020, under DC 8520, which governs paralysis of the sciatic nerve. The second evaluation is a 20 percent rating effective September 14, 2020, under DC 8526, which governs paralysis of the anterior crural, or femoral, nerve. Diagnostic Code 8520 provides for an 80 percent evaluation where there is complete paralysis of the sciatic nerve, with the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost. Lower ratings are assigned for incomplete paralysis of the sciatic nerve: a 60 percent evaluation for severe incomplete paralysis, with marked muscular atrophy; a 40 percent evaluation for moderately severe incomplete paralysis; a 20 percent evaluation for moderate incomplete paralysis; and a 10 percent evaluation for mild incomplete paralysis. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Under DC 8526, complete paralysis of the femoral nerve, which is rated as 40 percent disabling, contemplates paralysis of the quadriceps extensor muscles. Ratings of 10 percent, 20 percent and 30 percent are assigned for incomplete paralysis that is mild, moderate, or severe in degree, respectively. The words “mild,” “moderate,” and “severe,” as used in the various diagnostic codes, are not defined in the rating schedule. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Here, there are no private treatment records relevant to the Veteran’s lower extremity radiculopathy; all references to treatment are VA treatment records. In March 2012, the Veteran underwent electromyography to determine the nature of his neuropathy symptoms, which revealed bilateral L5 and S1 radiculopathy. The Veteran reported bilateral numbness in his forefoot, including all toes, for approximately one year. In October 2012, a few months after his lumbar spine surgery, the Veteran reported that he continued to experience the numbness in his toes. At an April 2013 VA examination, the Veteran did not report any complaints regarding radiculopathy of the right lower extremity. Muscle strength and sensory testing of the right lower extremity were all normal, and no muscle atrophy was noted. The examiner did not note any radicular symptoms such as constant or intermittent pain, paresthesias, or numbness in the right lower extremity, and noted the right lower extremity was not affected by radiculopathy. In July 2014, the Veteran attended a VA podiatry consultation for bilateral foot pain. He reported numbness in his toes and shooting pain and numbness through his legs after extended walking. From September 2014 through August 2015, the Veteran sought treatment several times for radicular pain and other symptoms in his left lower extremity. During these visits, the Veteran did not make complaints of radicular symptoms in his right lower extremity, except for twice noting some pain and a longstanding numbness in the soles of both feet. At the January 2017 Board hearing, the Veteran testified to having increasing difficulty with his legs giving out, requiring that he hold onto something for stability and to keep from falling; he did not specify whether only the left leg tended to give out. He also reported a burst of pain in his toes when he pulls socks on. The Veteran described increasing pain in his right lower extremity. In October 2017, the Veteran attended another VA spine examination, at which he reported low back pain radiating intermittently to the posterior aspects of both thighs, both lower legs, and the bottom of both feet. He described the radiating pain as varying between a four and an eight out of ten. The Veteran denied a tingling sensation in either lower extremity, but reported constant numbness in the bottom of both feet since 1997. Muscle strength testing was all normal, as was sensory testing in the bilateral upper anterior thighs, thighs, knees, lower legs, and ankles; sensation to light touch was decreased bilaterally in the foot and toes. The examiner noted the sensory impairment is over the lateral aspects of both soles and over the little toes bilaterally, which are areas corresponding to the S1 nerve roots. The examiner noted moderate constant pain and mild numbness bilaterally, and characterized the bilateral radiculopathy as mild. At VA podiatry visits in March 2019, July 2019, October 2019, February 2020, and June 2020, sensation to vibration was noted to be intact, and the Veteran denied paresthesias and positive Tinel’s sign. At the September 2020 VA examination, the Veteran reported intermittent and unpredictable, “electric,” shooting pain down either or both legs when walking. He also reported bilateral numbness and tingling in his toes and dorsal area of his feet. The Veteran reported that, on occasion, he feels a sharp, stabbing pain in his back, and then his legs give out on him. Muscle strength was slightly reduced bilaterally in ankle plantar flexion, ankle dorsiflexion, and great toe extension, though no muscular atrophy was noted. Sensation to light touch was normal in both upper anterior thighs, thighs, and knees, decreased in the lower legs and ankles, and absent in the feet and toes. In both lower extremities, mild constant pain, severe intermittent pain, and moderate paresthesias and numbness were noted. The examiner noted that both the femoral nerve and sciatic nerve were involved in the Veteran’s radiculopathy on both the right and left. The examiner characterized the radiculopathy in both lower extremities as moderate. The examiner opined that radiculopathy is the most likely cause of the Veteran’s reported loss of station, especially in flexion and as he reaches the endpoints of right and left lateral rotation. After careful review of the record, the Board finds that an increase in rating is warranted for the radiculopathy of the right lower extremity for a portion of the period on appeal. Prior to October 19, 2017, the Veteran is in receipt of a noncompensable rating under DC 8520. During this period, the record reflects complaints of numbness in the right forefoot, particularly the toes. Of note, the Veteran did not report any radicular symptoms in the right leg at the April 2013 VA examination, and the examiner did not note any involvement of the right leg. However, beginning at the July 2014 VA podiatry visit, the Veteran began reporting some occasional pain in his right foot, which radiated to his right leg after extended walking. From the Veteran’s January 2017 testimony, the pain appears to have increased throughout this period in frequency and intensity. Therefore, the Board finds that a 10 percent evaluation is merited for the period from July 29, 2014, to October 18, 2017, for mild radiculopathy of the right lower extremity. A compensable rating is not warranted for the period prior to July 29, 2014, as the Veteran’s symptoms were minimal, ranging from non-existent to numbness in the toes. From October 19, 2017, to September 13, 2020, the Veteran is in receipt of a 20 percent evaluation under DC 8520, and the Board finds that no increase is warranted for this period. The reported symptoms again consisted of numbness in the right foot and toes and radiating pain in the right leg, with decreased sensation to light touch noted in the right foot and toes. However, there was no weakness or muscle atrophy noted, and the Veteran did not describe any instability or other neurological symptoms resulting from his right lower extremity radiculopathy. As the evidence reflects symptoms of a wholly sensory nature during this period, an evaluation in excess of 20 percent, e.g. for more than a moderate degree of incomplete paralysis, is not warranted. Beginning September 14, 2020, the Veteran is in receipt of a 40 percent evaluation under DC 8520 and a 20 percent evaluation under DC 8526. The Board notes that these ratings are to compensate for radiculopathy affecting different nerves. As for the rating under DC 8520, the Board finds that an increase is not warranted, as the next higher evaluation, for severe incomplete paralysis, requires marked muscular atrophy. Although muscle strength was noted to be slightly reduced, no atrophy was noted at the September 2020 VA examination or elsewhere in the record. The Board finds that the 40 percent evaluation sufficiently compensates the Veteran for the reported sharp, stabbing pains radiating down his right leg and numbness in the right foot, as well as the occasions on which his right leg gives out due to the sharp, shooting pain. As for the rating under DC 8526, the Board again finds that an increase is not warranted, as the evidence from the September 2020 VA examination tends to reflect moderate radiculopathy of the right lower extremity. The Board finds that the mild constant pain, severe intermittent pain, and moderate paresthesias and numbness reported by the Veteran are best characterized as moderate radiculopathy involving the femoral nerve, as the severe intermittent pain is described in the record as very brief in duration. Further, the associated temporary leg weakness is compensated for under the DC 8520 evaluation; to award an increase based on this symptom under DC 8526 would be pyramiding, which is not permitted. See 38 C.F.R. § 4.14. In conclusion, for the right lower extremity, the Board finds the appropriate evaluations throughout the period on appeal to be noncompensable under DC 8520 prior to July 29, 2014; a 10 percent evaluation under DC 8520 from July 29, 2014, to October 18, 2017; a 20 percent evaluation under DC 8520 from October 19, 2017, to September 13, 2020; and a 40 percent evaluation under DC 8520 and a 20 percent evaluation under DC 8526 beginning September 14, 2020. 3. Entitlement to increased evaluations for radiculopathy of the left lower extremity Like the right lower extremity, the Veteran is currently in receipt of two evaluations for radiculopathy of the left lower extremity. The first is a noncompensable rating from March 8, 2012, to April 7, 2013; a 10 percent rating from April 8, 2013, to October 18, 2017; a 20 percent rating from October 19, 2017, to September 13, 2020; and a 40 percent rating beginning September 14, 2020, under DC 8520, which governs paralysis of the sciatic nerve. The second evaluation is a 20 percent rating effective September 14, 2020, under DC 8526, which governs paralysis of the anterior crural, or femoral, nerve. As noted above, there are no private treatment records in the claims file relevant to the severity of the Veteran’s left lower extremity radiculopathy. In March 2012, the Veteran underwent electromyography to determine the nature of his neuropathy symptoms, which revealed bilateral L5 and S1 radiculopathy. The Veteran reported bilateral numbness in his forefoot, including all toes, for approximately one year. In October 2012, a few months after his lumbar spine surgery, the Veteran reported that he continued to experience the numbness in his toes. In August 2012, he was issued a standard cane to assist with balance after complaints of left leg quivering and weakness. In May 2013, he complained of numbness in the toes and heel of the left foot and in the left groin. At an April 2013 VA examination, the Veteran reported gait instability related to numbness and pain in his left leg, and that he uses a cane for precaution and help with stability. Muscle testing was all normal, except for slightly decreased strength in great toe extension, and no muscle atrophy was noted. Sensory testing was normal in the upper anterior thigh, but decreased sensation to light touch was noted in the left thigh, knee, lower leg, ankle, foot, and toes. The examiner noted symptoms including moderate intermittent pain, moderate paresthesias, and severe numbness in the left lower extremity. The examiner characterized the radiculopathy of the left lower extremity as mild. In August 2013, the Veteran reported experiencing low back pain with radiation down the left leg, and left leg weakness when walking. The Veteran reported the left leg weakness had been present at the same level of severity since 2010. In July 2014, the Veteran attended a VA podiatry consultation for bilateral foot pain. He reported numbness in his toes and shooting pain and numbness through his legs after extended walking. In September 2014, the Veteran reported a sudden pain in his back which causes the feeling in his left leg to disappear, which causes him to fall. He also reported that the pain in his feet was getting worse, and endorsed continuing numbness in both feet. A November 19, 2014, electromyography showed reduced recruitment and long duration motor units in L5-S1 innervated muscles. The results were noted to have increased since the previous electromyography in March 2012, including profuse spontaneous activity at L5 and S1. Also at the electromyography procedure, the Veteran reported a sudden sharp pain in his low back with loss of left lower limb support, causing him to fall. In January 2015, the Veteran attended a VA neurosurgery consultation, where he reported an 18-month history of intermittent sharp back pain radiating in to his left lower extremity; he described it as excruciating pain, a ten out of ten, that caused him to collapse on several occasions. The Veteran also described severe paresthesias in the plantar aspect of his left foot. Muscle strength testing at this consultation was all normal except for decreased strength in great toe extension on the left lower extremity. In February 2015, the Veteran complained again to his VA primary care physician of the sudden “shock” of pain in his low back that causes his left leg to “disappear,” and he reported that this always occurs while standing or walking, not while seated or lying down. The Veteran reported that the episodes are brief in duration, only a few seconds before the left leg returns to normal feeling and strength, but he will fall down if he is not holding onto something. The physician noted no associated paralysis in the left leg, no muscle atrophy, and no loss of sensation in the dermatomal pattern. At an August 2015 VA pain clinic consultation, the Veteran reported chronic bilateral foot numbness and tingling, as well as low back pain radiating around the left lateral hip and down his left leg to his foot. An examination at this consultation revealed diminished sensation to light touch and pinprick in the left lateral and bilateral feet. In February 2016, the Veteran sought treatment at the VA pain clinic for chronic low back pain and left radicular pain, rating the pain as a five out of ten. He was treated with a second epidural steroid injection. At the January 2017 Board hearing, the Veteran testified to having increasing difficulty with his legs giving out, requiring that he hold onto something for stability and to keep from falling. He also reported a burst of pain in his toes when he pulls socks on. In October 2017, the Veteran attended another VA spine examination, at which he reported low back pain radiating intermittently to the posterior aspects of both thighs, both lower legs, and the bottom of both feet. He described the radiating pain as varying between a four and an eight out of ten. The Veteran denied a tingling sensation in either lower extremity, but reported constant numbness in the bottom of both feet since 1997. Muscle strength testing was all normal, as was sensory testing in the bilateral upper anterior thighs, thighs, knees, lower legs, and ankles; sensation to light touch was decreased bilaterally in the foot and toes. The examiner noted the sensory impairment is over the lateral aspects of both soles and over the little toes bilaterally, which are areas corresponding to the S1 nerve roots. The examiner noted moderate constant pain and mild numbness bilaterally, and characterized the bilateral radiculopathy as mild. In June 2019, the Veteran reported to his VA primary care physician that he fell getting into his truck when he experienced intense, shooting low back pain and his left leg “felt like it was gone for a second.” At VA podiatry visits in March 2019, July 2019, October 2019, February 2020, and June 2020, sensation to vibration was noted to be intact, and the Veteran denied paresthesias and positive Tinel’s sign. At the September 2020 VA examination, the Veteran reported intermittent and unpredictable, “electric,” shooting pain down either or both legs when walking. He also reported bilateral numbness and tingling in his toes and dorsal area of his feet. The Veteran reported that, on occasion, he feels a sharp, stabbing pain in his back, and then his legs give out on him. Muscle strength was slightly reduced bilaterally in ankle plantar flexion, ankle dorsiflexion, and great toe extension. Sensation to light touch was normal in both upper anterior thighs, thighs, and knees, decreased in the lower legs and ankles, and absent in the feet and toes. In both lower extremities, mild constant pain, severe intermittent pain, and moderate paresthesias and numbness were noted. The examiner characterized the radiculopathy in both lower extremities as moderate. After review of the evidence of record, the Board finds that an increase is warranted for a portion of the period on appeal. Under DC 8520, the Veteran is currently in receipt of a noncompensable rating prior to April 7, 2013; a 10 percent rating from April 8, 2013, through October 18, 2017; a 20 percent rating from October 19, 2017, through September 13, 2020; and a 40 percent rating beginning September 14, 2020. The Board finds instead that the evidence reflects mild to moderate radiculopathy prior to September 10, 2014, and moderately severe radiculopathy thereafter. The Board does not find that any increase is warranted for the separate 20 percent evaluation under DC 8526. Prior to September 10, 2014, the Veteran complained of numbness in the toes and heel of his left foot, as well as one report of numbness in the left groin area. At the April 2013 VA examination, intermittent pain, paresthesias, and numbness were noted in the left lower extremity, and decreased sensation to light touch was noted in much of the left lower extremity. The Veteran also reported a sensation of weakness in the left leg when walking that had been present throughout the period prior to September 10, 2014, for which he was issued a cane to assist with stability. Also during this period, the Veteran began to report shooting pain through his legs after extended walking. The Board finds that these symptoms, taken together, are best described as a moderate level of incomplete paralysis, and a 20 percent evaluation for the period prior to September 10, 2014, is warranted. A higher evaluation is not warranted for this period, as the only clinical notation of reduced muscle strength was in great toe extension in the left lower extremity, indicating that the radicular symptoms were largely sensory in nature, and the Veteran did not report any further consequences of his left lower extremity symptoms, such as falling, during this period. On September 10, 2014, the Veteran first reported that his left leg symptoms had caused him to fall. Also in September 2014, he reported that the pain in his left foot was worsening, which was confirmed by the November 2014 electromyography. He at times described the shooting pain from his low back down his left leg as “excruciating,” and consistently and credibly reported that this unpredictable, sharp pain caused him to fall on repeated occasions. While the sharp, shooting pain and associated left leg instability was described as brief in duration, the Board finds that this symptom, in conjunction with the longstanding numbness, other complaints of pain, and tingling, describe a moderately severe picture of incomplete paralysis. Therefore, a 40 percent evaluation is warranted for the period beginning September 10, 2014. An evaluation higher than 40 percent is not warranted for the radiculopathy of the left lower extremity, as the next higher evaluation requires severe incomplete paralysis with marked muscular atrophy. No muscle atrophy in the left lower extremity was noted at any point in the record. Regarding the 20 percent rating under DC 8526, the Board finds that an increase is not warranted. As noted above, the symptom involving temporary leg weakness due to sharp, shooting pain is compensated for under the DC 8520 evaluation, and the remaining symptoms of radiculopathy are best characterized as moderate. The evidence from the September 2020 VA examination reveals slightly reduced muscle strength and decreased or absent sensation to light touch. The Veteran endorsed pain, paresthesias, and numbness, while the intermittent pain was described as severe, the record reflects that the intermittent pain recurs on an unpredictable basis and is very brief in duration. In conjunction with the reportedly mild constant pain and moderate paresthesias and numbness, the Board finds that a 20 percent evaluation for radiculopathy of the left lower extremity affecting the femoral nerve adequately compensates for these symptoms. In conclusion, the Board finds that the appropriate evaluations for the Veteran’s left lower extremity radiculopathy are a 20 percent evaluation under DC 8520 prior to September 10, 2014; a 40 percent evaluation under DC 8520 thereafter; and a separate 20 percent evaluation under DC 8526 beginning September 14, 2020. TDIU VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). Because it is established VA policy 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 Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). Section 4.16 of VA’s regulations does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996). 4. Entitlement to a TDIU prior to September 14, 2020 With the increases granted above, the Veteran now meets the schedular requirements for a TDIU as of September 10, 2014, when his combined disability rating is in excess of 70 percent, with one disability rated at least 40 percent disabling. For the portion of the appeal period where the Veteran does not meet the schedular requirements, prior to September 10, 2014, the Board will consider whether the Veteran’s case should be referred to the Director for extraschedular consideration. The Board incorporates here all of the evidence recited above, and notes the Veteran is also service connected for bilateral hearing loss and tinnitus. In August 2011, the Veteran submitted a VA form 21-8940 in support of his TDIU claim. He reported that he had been self-employed, running his own trim carpentry business full-time until August 2009. The Veteran reported having completed two years of college, and not receiving any other education or training since then. At the January 2017 Board hearing, the Veteran testified that he considered himself qualified to perform office work and administrative tasks, as long as he could get up every once in a while and move around, because he had problems sitting for long periods of time. He described that, on long drives, his leg begins to hurt and tingle, and he needs to get out of the car and move around before resuming the drive. The Veteran reported having completed an associate’s degree in small business management. The Board finds that, as of September 10, 2014, a TDIU is warranted in this case. September 10, 2014, is the date the Veteran first reported that his service-connected radicular symptoms were causing him to fall. The record reflects that the sharp, shooting pain causing temporary leg weakness recurs in an unpredictable pattern while the Veteran is walking. The evidence also indicates that the Veteran uses a cane for gait stability and as a precaution against falling, and that extended walking aggravates his back and radicular pain. Therefore, the Board finds that any occupation requiring more than light lifting achievable with one hand or more than incidental walking, such as physical labor or retail sales work, would not be available to the Veteran. (Continued on the next page)   The Veteran testified that he would be qualified for sedentary occupation such as office work performing administrative tasks, and the Board notes the Veteran’s associate’s degree in small business management likely provided appropriate training to the Veteran for such work. However, the Board also notes the service-connected bilateral hearing loss, rated as 30 percent disabling, and the Veteran’s testimony that he has difficulty sitting for long periods of time without experiencing pain and tingling in his legs. The record therefore indicates the Veteran’s service-connected disabilities would tend to preclude such work requiring sitting for extended periods of time or interacting efficiently with the public, clients, or coworkers in conversation or over the telephone due to difficulty hearing. For the period prior to September 10, 2014, the Board finds that referral for extraschedular consideration is not warranted. As noted, the Veteran’s education and occupational history prepared him for such work as administrative tasks in an office. The Veteran’s radicular symptoms were not as severe prior to September 10, 2014, and the record does not reflect that he had difficulty sitting for long periods during this earlier portion of the appeal period. Therefore, the Board finds the Veteran’s service-connected disabilities did not preclude substantially gainful occupation prior to September 10, 2014; referral for extraschedular is not warranted and a TDIU is denied prior to September 10, 2014. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.