Citation Nr: 21039953 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 11-11 056 DATE: July 1, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine is denied. Entitlement to a rating of 10 percent, but no greater, for right lower extremity sciatic nerve radiculopathy from December 17, 2009, is granted. Entitlement to a rating of 10 percent, but no greater, for left lower extremity sciatic nerve radiculopathy from December 17, 2009, is granted. Entitlement to a rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy is denied. Entitlement to a rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy is denied. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine DDD has more closely approximated disability resulting in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, than disability resulting in forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 2. The Veteran's right and left lower extremity sciatic nerve radiculopathy, manifested by mild incomplete paralysis of the sciatic nerve, resulting from his lumbar spine DDD, existed from the time of his December 17, 2009, claim for an increased rating. 3. The Veteran's right and left lower extremity sciatic nerve radiculopathies have each approximated, at most, mild incomplete paralysis of the sciatic nerve. 4. The Veteran has not been unable to secure or follow a substantially gainful occupation as a result of any service-connected disability or disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for DDD of the lumbar spine are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. The criteria for a rating of 10 percent, but no greater, for right lower extremity sciatic nerve radiculopathy from December 17, 2009, are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating of 10 percent, but no greater, for left lower extremity sciatic nerve radiculopathy from December 17, 2009, are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 5. The criteria for a rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 6. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to September 1980 and from October 2003 to January 2005. This appeal is before the Board of Veterans' Appeals (Board) from June 2010 and December 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office. In August 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The matters on appeal were remanded to the agency of original jurisdiction (AOJ) by the Board, in whole or in part, in May 2014, December 2015, and September 2016. In August 2017, the Board denied ratings greater than 10 percent for right and left lower extremity radiculopathy. In June 2018, it denied a rating greater than 20 percent for lumbar spine DDD, and remanded the matter of a TDIU. The Veteran appealed the denied claims to the United States Court of Appeals for Veterans Claims (Court). In June 2018 and April 2019, the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted Joint Motions for Partial Remand (Joint Motions). In a June 2018 and April 2019 Orders, the Court granted the motions and remanded the matters to the Board. The Board again remanded to the AOJ the matters of ratings in excess of 10 percent for radiculopathy of the sciatic nerve of the left and right lower extremities, and a rating greater than 20 percent for lumbar spine DDD, in January 2019 and November 2019, respectively. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Reasonable doubt on any point is resolved in favor of the claimant. 38 U.S.C. § 5107. 1. A rating in excess of 20 percent for DDD of the lumbar spine is denied. The Veteran's lumbar spine DDD is rated under Diagnostic Code (DC) 5242, and is thus rated according to the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, DC 5242. Under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes), the following ratings are assignable 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: 10 percent 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; 20 percent 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; 40 percent for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Plate V, 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. See C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. The evidence of record includes VA examinations dated in April 2010, July 2012, June 2015, January 2017, September 2017, and December 2019. On April 2010 VA examination, the Veteran reported pain, decreased motion, and stiffness. He reported flare-ups occurring weekly and precipitated by prolonged sitting or lifting heavy objects, at which time he could not sit to do any work. On physical examination, there was no objective evidence of spasms, weakness, guarding, tenderness, atrophy, or pain on motion. Range of motion testing revealed flexion to 75 degrees, extension to 30 degrees, left lateral flexion to 10 degrees, right lateral flexion to 30 degrees, left lateral rotation to 10 degrees, and right lateral rotation to 30 degrees. There was no objective evidence of pain following repetitive motion and no additional functional limitations. Sensory and deep tendon reflexes were normal. There were noted to be significant effects on the Veteran's employment as a result of his low back disability, as he could not do physical work where he had to lift or sit a long time and, as such, the Veteran stated he was in school to retrain himself. The Veteran was reexamined in July 2012. He reported that he believed the pain was worse than the last time he was examined. He also reported spasms and stiffness, and flare-ups daily with a duration of 6 hours to 1 day, and the location varying from the lower back to sometimes only radiating down into his buttocks. He denied bowel or bladder impairments, incapacitating episodes, or limitations on walking. It was noted the Veteran was using a back brace. The examiner also noted that the Veteran had been unemployed since 2011 and indicated the Veteran was currently a student after quitting his job as a fork-lift operator since his doctor told him he may not be able to do that job much longer. Upon physical examination, there was no evidence of atrophy or ankylosis, and the Veteran's gait and spinal curvature were normal. There was no tenderness, but the examiner noted guarding and pain on motion. Range of motion testing revealed flexion to 65 degrees, extension to 30 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 20 degrees. The examiner noted a decrease in flexion to 60 degrees following repetitive motion. The Veteran was next examined in June 2015. The VA examiner noted the Veteran's prior complaints, as well as increase in his pain following an April 2014 motor vehicle accident in which the Veteran was rear-ended. The Veteran reported experiencing flare-ups 1 to 2 times a month, lasting 1 to 2 weeks. Range of motion testing revealed flexion to 60 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. Upon repetitive testing, range of motion revealed decreased flexion to 50 degrees, and right lateral flexion to 10 degrees. The examiner also indicted the Veteran was examined during a flare-up and the range of motion findings were noted as the same as those following repetition showing only a decrease in flexion and right lateral flexion. There was pain noted for flexion and extension but no pain on weight-bearing, and decreased motion due to spasms which did not result in abnormal gait or spinal curvature. There was no evidence of guarding or tenderness. The Veteran required the use of a brace. As for any impact on the Veteran's employment, it was indicated the Veteran was precluded from bending, lifting heavy objects, squatting, or prolonged standing, sitting, or walking. The Veteran was next examined in January 2017. He reported that his back pain had worsened since his last examination, and having shooting pain down his legs. He also reported having more difficulty getting up from sitting or lying down positions, and flare-ups occurring with activity or inactivity, and exposure to cold or damp environment, occurring 1 to 2 times per week, lasting from 2 days to a week, with shooting pain. The Veteran further reported functional loss of having a limp; being unable to stand, sit, or walk extended periods of time; using his legs to avoid bending activities; being unable to work in occupations such as an electrician; riding his lawnmower to mow his grass; having to take hourly breaks to walk around while driving; being unable to climb ladders to do overhead household maintenance; and avoiding lifting heavy or large objects. Range of motion testing revealed flexion to 50 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner noted pain in forward flexion, extension, and right lateral flexion motions. There was no evidence of pain on weight bearing, or objective evidence of localized pain or tenderness to palpation. Upon repetitive testing, range of motion revealed decreased flexion to 40 degrees, extension to 20 degrees, and right lateral flexion to 20 degrees. It was noted that pain limited functional ability following repetitive testing. The examiner also indicted the Veteran was not examined during a flare-up, but that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups, with pain significantly limiting functional ability during a flare-up. The examiner found that the Veteran suffered from muscle spasms resulting in abnormal gait or spinal curvature, but no evidence of guarding. There was no evidence of any other neurological abnormalities, aside from the service-connected radiculopathy. The examiner also noted the Veteran has IVDS, but indicated he did not have any incapacitating episodes in the last 12 months. The Veteran required the occasional use of a brace while driving for long periods of time. As for any impact on the Veteran's employment, it was indicated he was precluded from bending, lifting heavy objects, squatting, or prolonged standing, sitting, or walking. On September 2017 examination, the Veteran's reported symptoms and the frequency of flare-ups were the same as those noted in January 2017. Range of motion testing revealed flexion to 35 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25 degrees. The examiner noted pain on motion for all directions and on weight bearing. The Veteran was able to perform repetitive testing without additional loss of function or range of motion. There was no evidence of pain or tenderness to palpation. The examiner also noted the Veteran had muscle spasm and guarding resulting in abnormal gait or spinal curvature. There was no evidence of ankylosis or any other neurological abnormalities, aside from the service-connected radiculopathy. The examiner further noted that the Veteran had IVDS, but indicated he did not have any incapacitating episodes in the last 12 months. The examiner assessed that the Veteran's low back disability impacted his ability to work in that the Veteran was unable to lift, turn, twist, carry, sit, or stand for any length of time without excruciating pain. The Veteran's lumbar spine disability most recently underwent two separate VA examinations in December 2019. On December 13, 2019, examination, he reported constant low back pain above the belt line and into the thoracic spine and radiating into both buttocks, which was sharp and 5/10 at the best and 10/10 at the worst. He described pain radiating down the back of both legs and into the feet into the top of the foot/ankle, with pain in the legs sharp in nature and constant. He reported using a back brace used daily when driving. He further reported being able to stand for 10 to 15 minutes, walk a mile, sit for 30 minutes, drive for one hour before having to get out and stretch, lift 10 pounds, and push his motorized lawn mower for 30 minutes; he had to pay his son to do more strenuous work at home. On range of motion testing, flexion was to 55 degrees, extension to 20, right and left lateral flexion to 20, and right and left lateral rotation to 15 degrees. The functional loss was noted to be due to pain. Repetitive use testing was performed, but did not result in additional loss of function or range of motion after three repetitions. On December 19, 2019, examination, the Veteran reported flare-ups of the back occurring 3 to 4 times a week that were severe, would just show up, and were alleviated by sitting, taking it easy, and staying still. On range of motion testing, flexion was to 45 degrees, extension to 20, right lateral flexion to 25 degrees, left lateral flexion to 5 degrees, and right and left lateral rotation to 30 degrees. It was noted that functional loss was caused by pain, and that the Veteran reported to have ceased demonstrated forward flexion at the beginning of pain; it was also noted that the Veteran was observed maintaining full squat for 2 to 3 minutes while checking his phone that had fallen to the floor, which required at least 80 degrees of flexion. It was further noted by the examiner that the Veteran's estimated range of motion with repeated use over time, and with flare-ups, was the same as was tested on examination that day, with pain the limiting factor, noting that the examination was being performed during a current flare-up, as reported by the Veteran. On passive range of motion and non-weight bearing testing of the back, where was no evidence of pain. The evidence in this case is against a rating greater than 20 percent for the Veteran's lumbar spine DDD. The Veteran's disability has been manifested by pain, stiffness, and muscle spasms, with episodes of flare ups, resulting in functional impairment including difficulty lifting, turning, twisting, carrying and other such normal uses of the lumbar spine, as well as with prolonged sitting and standing. It has also been manifested by limited motionat most, to 35 degrees of flexion on examinationand typically to 45 degrees or greater flexion. Even considering such factors as pain and any additional disability with repetition or during episodes of flare-ups, the Veteran's lumbar spine disability has not more closely approximated flexion to 30 degrees or less than flexion greater than 30 degrees; in this regard, as noted above, the Veteran's most recent December 19, 2019, VA examination was performed at a time that the Veteran reported currently experiencing a flare-up of his lumbar spine disability. That most recent December 19, 2019, VA examination report is generally consistent with the previous VA examinations, with findings reflecting disability consistent with a 20 percent rating under DC 5242. The examination, furthermore, complied with the November 2019 Board remand instructions (and, in doing so, the April 2019 Joint Motion terms), by both eliciting and noting relevant reported information about the Veteran's lumbar spine flare-ups and actually being conducted during a flare-up of the disability, as well as testing for pain on passive range of motion and in non-weight-bearing, in addition to the testing performed with active motion and in weight-bearing. See 38 C.F.R. § 4.59 ("The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing"); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017); Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The VA examination findings, moreover, are generally consistent with complaints and findings contained in the numerous treatment records associated with the claims file, which generally reflect back and lower extremity pain exacerbated by prolonged sitting, walking, and bending. While some VA chiropractic records from 2018 to 2020 reflect forward flexion of 15 or 20 degrees, the Board finds these to be less probative than the VA examination reports in measuring the Veteran's range of motion. Such chiropractic records note "range of motion estimated" in providing measurements, while the VA examiners specifically noted use of a goniometer in conducting range of motion measurements. See 38 C.F.R. § 4.46 ("The use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs"). Again, on December 19, 2019, VA examination, in specifically testing range of motion with a goniometer during a reported flare-up, the examiner measured flexion to 45 degrees, with the Veteran reporting to have ceased forward flexion at beginning of pain. It was also noted that the Veteran was observed maintaining full squat for 2 to 3 minutes while checking his phone that had fallen to the floor, which required at least 80 degrees of flexion. Obtained VA medical records also include radiology reports and other records previously scanned into the VA VistA system and referenced in VA treatment records, which were associated in January 2020 in compliance with the November 2019 Board remand directives and April 2019 Joint Motion terms. Finally, the Board has considered the criteria for a higher rating under DC 5243 for IVDS, which requires incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period. See 38 C.F.R. § 4.71a, DC 5243. However, as noted in the Board's June 2018 decision, VA examination reports have consistently not reflected periods of acute signs and symptoms requiring bed rest and treatment prescribed by a physician, and neither have the numerous VA treatment records pertaining to Veteran's lumbar spine disability throughout the years of the appeal period in question. Accordingly, a rating in excess of 20 percent for DDD of the lumbar spine must be denied. 2. A rating of 10 percent, but no greater, for right lower extremity sciatic nerve radiculopathy from December 17, 2009, is granted. 3. A rating of 10 percent, but no greater, for left lower extremity sciatic nerve radiculopathy from December 17, 2009, is granted. 4. A rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy is denied. 5. A rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy is denied. The Veteran's right and left lower extremity sciatic nerve radiculopathy is rated under DC 8520. DC 8520 provides that mild incomplete paralysis of the sciatic nerve is rated as 10 percent and that moderate incomplete paralysis is rated as 20 percent. Moderately severe incomplete paralysis is rated as 40 percent, and severe incomplete paralysis with marked muscular atrophy is rated 60 percent. Complete paralysis is rated as 80 percent, and is manifested by the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened and (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. Under the provisions of 38 C.F.R. § 4.124a , 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 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. The Veteran initially filed a claim for an increased rating for his lumbar spine disability on December 17, 2009, and appealed the matter to the Board. In May 2014, the Board found that radiculopathies of the lower extremities were neurological manifestations of the Veteran's service-connected lumbar spine DDD, and thus that the claim of service connection for radiculopathy of the bilateral lower extremities was part and parcel of his increased rating claim for his lumbar spine disability. In remanding the service connection claim for lower extremity radiculopathy at that time, the Board noted that "the medical evidence of record is ambiguous as to whether the Veteran has a valid diagnosis of radiculopathy of the bilateral lower extremities associated with the service-connected DDD of the lumbar spine." The Board cited July 2009, April and May 2011 and July 2013 treatment records, as well as the Veteran's July 2013 testimony before the Board, as evidence in support of the existence of lower extremity radiculopathy; and an April 2010 VA examination report, March 2012 treatment record, and July 2012 VA examination report as evidence against the existence of sciatic neuropathy. The Board thus found the medical evidence inadequate, and determined that, on remand, the Veteran must be afforded a VA neurologic examination to determine the existence and severity of any neurologic manifestations of the Veteran's service-connected DDD of the lumbar spine. In accordance with the Board's remand, the Veteran was afforded a VA examination of the peripheral nerves on June 29, 2015. Based on the findings on that examination, the Veteran was granted service connection for radiculopathy of the right and left sciatic nerves of the lower extremities in a December 2015 rating decision with ratings of 10 percent for each, effective June 29, 2015. The effective date was assigned on the basis that it was the date of the VA examination that provided objective evidence of mild incomplete paralysis to both lower extremities. However, as explained in the May 2014 Board remand, the issue of separate ratings for radiculopathy of the right and left sciatic nerves was encompassed in the December 17, 2009, increased rating claim, and evidence of such radiculopathy, while mixed, had been throughout the appeal period; the Board remanded the matter for a VA examination to make a definite determination as to whether such radiculopathy, as indicated in the record throughout the appeal period, was properly diagnosed and existed. In light of this, and resolving reasonable doubt in the Veteran's favor, the Board finds that his right and left lower extremity sciatic nerve radiculopathy, manifested by mild incomplete paralysis of the sciatic nerve, existed from the time of his December 17, 2009, claim. Therefore, his separate 10 percent ratings for such disabilities are warranted as of that date. However, the Veteran is not entitled to any higher ratings than 10 percent for his radiculopathy of the left and right lower extremities, as the evidence weighs against a finding of at least moderate incomplete paralysis of either sciatic nerve to warrant a 20 percent rating or greater under DC 8520. The June 2015 VA examination documented mild numbness and intermittent pain of the bilateral lower extremities and moderate paresthesias/dysesthesias of the bilateral lower extremities. Muscle strength testing was normal. There was no muscle atrophy. Reflex testing indicated hypoactive reflexes of the bilateral knees and ankles. There was hair loss below the knees and sensory testing was normal. The VA examiner concluded that the Veteran had mild incomplete paralysis of left and right sciatic nerves. On January 2017 VA examination, the Veteran endorsed mild intermittent pain, paresthesias/dysesthesias, and numbness of the bilateral lower extremities. Muscle strength testing was normal bilaterally. There was no muscle atrophy. The Veteran's reflexes were normal for the bilateral ankle and left knee. The right knee had hypoactive reflexes. The sensory examination was normal and there was smooth shiny and hairless skin below the knees. The VA examiner concluded that the Veteran had mild incomplete paralysis of left and right sciatic nerves. The Veteran was again provided a VA examination in December 2019, at which time he reported moderate, constant pain and mild paresthesias and/or dysesthesias of the lower extremities. Muscle strength was full throughout the lower extremities and there was no atrophy. Reflexes were noted to have been hypoactive in the brachioradialis bilaterally, and in the right knee and ankle. Sensation to light touch was decreased in the lower legs and feet, and there was loss of hair on the toes bilaterally. Gait was normal. The Veteran was again assessed with mild incomplete paralysis of the left and right sciatic nerves. The examiner noted that, due to radiculopathy to the sciatic nerve, right and left lower extremity, associated with lumbar spine DDD, the Veteran was able to stand for 10 to 15 minutes, walk a mile, sit for 30 minutes, drive for one hour before having to get out and stretch, lift 10 pounds, and push his motorized lawn mower for 30 minutes; he had to pay his son to do more strenuous work at home. The examiner further commented that the Veteran's right and left sciatic nerve radiculopathy was assessed as mild due to no loss of muscle strength. Regarding the hypoactive deep tendon reflexes (DTRs) of the right knee and ankle found on examination in June 2015 and hypoactive right knee reflexes found in January 2017, the December 2019 examiner noted that she had the same findings on examination, with hypoactive reflexes in right knee and right ankle as compared to the left. She further commented that, in reviewing the imaging of the lumbar spine, there was some right-sided involvement of facet arthropathy at L4-L5 with bilateral findings at L4-L5 that was likely a nerve root compression/lumbar radiculopathy based on the consistency of the findings of reduced DTR in the right lower extremity. The Veteran was provided a VA peripheral nerves examination in October 2020, in connection with an upper extremity disability claim not currently before the Board. However, on examination, strength was again noted to be full throughout the lower extremities with no atrophy, and light touch sensation was also normal. The Veteran was again assessed with mild incomplete paralysis of the left and right sciatic nerves. The Veteran's treatment records contain findings consistent with the VA examinations reports. The record thus reflects that the Veteran's left and right sciatic radiculopathies have most closely approximated mild incomplete paralysis of the sciatic nerve. While the Veteran's lower extremity disabilities have been manifested by pain, some decreased sensation, and some hypoactive reflexes, with associated, commensurate functional impairment, lower extremity strength has consistently been full throughout, and the Veteran has been assessed by four VA examiners during the appeal period to have mild incomplete paralysis of the bilateral sciatic nerve. The Board notes the Veteran's hypoactive reflex findings, specifically addressed in comments by the December 2019 VA examiner in compliance with the January 2019 Board remand instructions and June 2018 Joint Motion terms. The examiner both noted the previous hypoactivity findings and explained that they were consistent with her own on examination. She furthermore commented that such findings were consistent with her review of the diagnostic imaging. However, the examiner nonetheless assessed the Veterans bilateral radiculopathy as mildrather than moderate or greaterincomplete paralysis of the sciatic nerve. Even considering the Veteran's hypoactive reflex pathology, his left and right sciatic nerve radiculopathy disabilities, each considered in its entirety, including full strength throughout each lower extremity and, again, in consideration of the assessments of four different VA examiners throughout the appeal period of mild incomplete paralysis, have more closely approximated mild, rather moderate or greater, incomplete paralysis of the sciatic nerve. Accordingly, ratings of 10 percent, but no greater, for right and left lower extremity sciatic nerve radiculopathy from December 17, 2009, must be granted, but a rating in excess of 10 percent for each such disability must be denied. 6. A TDIU, to include an extraschedular basis, is denied. Total disability ratings for compensation based on 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. 38 C.F.R. §§ 3.340, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Therefore, 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, are submitted to the Director, Compensation Service, for extra-schedular consideration. The referral includes 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 determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified, including consideration of education and occupational experience. Neither age nor intercurrent disability may be used as a basis for assignment of a total disability rating. 38 C.F.R. §§ 3.341, 4.19. The Veteran's service-connected disabilities during the appeal period at issue are as follows: depressive disorder, associated with lumbar spine DDD, rated 50 percent, effective October 5, 2018; lumbar spine DDD, rated 20 percent; cervical spine DDD, rated 10 percent prior to July 6, 2012, and 20 percent thereafter; carpal tunnel syndrome of the left and right wrists, rated 10 percent each; sciatic nerve radiculopathy of the left and right lower extremities, rated 10 percent each; residuals of crushing injuries to the second and third fingers of the left hand, rated noncompensable (0 percent) prior to June 12, 2019, and 10 percent each thereafter; and allergic rhinitis and crushing injury residuals of the left hand ring finger, each rated noncompensable. The Veteran's combined rating for compensation during the appeal period is 50 percent prior to July 6, 2012; 60 percent beginning July 6, 2012; 80 percent beginning October 5, 2018; and 90 percent beginning June 12, 2019. In its June 2018 remand, the Board noted that, at that time, the Veteran did not meet the schedular requirement for a TDIU, but that the record contained evidence that the Veteran had been unemployed since 2009 as a result of primarily his low back and neck disabilities, and that his disabilities may result in unemployability. It therefore referred the case to the Director, Compensation and Pension Service, for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). The AOJ referred the matter in July 2020, in accordance with the Board's remand. In a September 2020 Advisory Opinion, the Director, Compensation and Pension Service, recommended that a TDIU not be granted on an extraschedular basis. The primary basis of the opinion was that the Veteran was currently fully employed by VA and, during the relevant period, had either been employed or employable despite his disabilities. It further provided the following background information: Records also show that the Veteran worked at the Sampson Regional Hospital from November 2010 to July 2011; the records are not clear as to why his employment terminated there. He reported to VHA healthcare providers he was terminated from this job due to HIPAA violation. In 2012, the Veteran made application for Vocational Rehabilitation services, indicating he wished to have a job in health care or supply/supervisory work. His application was accepted. He enrolled at Fayetteville Community College in February 2012, and concurrently held work study positions during his education. The Veteran successfully completed the Vocational Rehabilitation and Employment (VR&E) Program in February 2015 and was deemed suitable for employment. At that time, the Veteran decided to continue his education rather than pursue employment, opting to seek a degree in electrical systems technology. He reapplied for VR&E services in September 2015, reporting he wanted a job in health information technology. He also had worked in medical billing. VHA records dated March 9, 2017 also refer to a worker's compensation case; it can be assumed that the Veteran was employed around that time. In June 2017 he reported to VR&E that he had obtained a part time job as a dietary aide at a nursing home. In July 2017 the Veteran asked for his case to be closed. The record finally shows that the Veteran left his dietary aide job in August 2017 because he did not like the physical aspects of the job (pushing carts, etc), and from November to December 2017 he worked a seasonal job for the Salvation Army. The evidence in this case does not show that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of any service-connected disability or disabilities. The record supports the findings in the September 2020 Advisory Opinion that the Veteran has been employable and, for much of the period, fully employed. It reflects that, during the period in question, the Veteran was involved in the VR&E program and, from the Veteran's own submitted resumes during this period, that from 2012 to 2016 he was employed in the work study program at a technical community college 25 hours a week while he completed schooling. He successfully completed this schooling, earning various degrees and certifications in the areas of technology and health care administration. (Continued on the next page) The Veteran's resumes, as well as VR&E records, reflect that he was searching for, and being offered, full-time employment in early 2018, and was employed by VA full time beginning in May 2018; he was initially employed in the housekeeping department while attending full-time business school and, beginning in January 2019, was employed as a phone operator with the Veterans Health Administration (VHA). VA counseling records dated in March and November 2019 reflect assessments and reports from the Veteran himself that his sedentary job did not cause any issues with his service-connected disabilities; an August 2019 Functional Capacity Evaluation reflects the assessment that the Veteran was able to work at the sedentary physical demand level for an 8-hour a day. A December 2019 form submitted from the Veteran's employer reflects that he worked as a telephone operator for VHA 8 hours per day and 40 hours per week. VA treatment records in 2020 note the Veteran reporting continuing full-time employment as a phone operator with VA. Considering the above, a preponderance of the evidence is against a finding that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of any service-connected disability or disabilities. Accordingly, a TDIU must be denied. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.