Citation Nr: 21041765 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 12-09 072 DATE: July 10, 2021 ORDER Entitlement to a rating greater than 20 percent for lumbosacral sprain is denied. For the period from December 18, 2018, entitlement to a 20 percent rating for right lower extremity peripheral neuropathy is granted, subject to the laws and regulations governing the award of monetary benefits. For the period from December 18, 2018, entitlement to a 20 percent rating for left lower extremity peripheral neuropathy is granted, subject to the laws and regulations governing the award of monetary benefits. For the period prior to December 18, 2018, entitlement to a rating greater than 10 percent for right lower extremity peripheral neuropathy is denied. For the period prior to December 18, 2018, entitlement to a rating greater than 10 percent for left lower extremity peripheral neuropathy is denied. For the period from April 27, 2009 to April 26, 2010, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REFERRED The November 2020 Joint Motion for Partial Remand (joint motion) found that the Board erred when it failed to address whether entitlement to special monthly compensation (SMC) had been raised by the record. Specifically, SMC based on loss of use of a creative organ, and SMC based on the need for aid and attendance. See 38 U.S.C. § 1114(k), (l). Considering the referenced statements and the joint motion, the issues have been raised as part of the legacy appeal for increase. The issues are referred to the agency of original jurisdiction (AOJ) for any necessary development and adjudication in the first instance. FINDINGS OF FACT 1. The Veteran's lumbosacral sprain is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 2. For the period from December 18, 2018, the Veteran's right lower extremity peripheral neuropathy is manifested by no more than moderate incomplete paralysis of the sciatic nerve. 3. For the period from December 18, 2018, the Veteran's left lower extremity peripheral neuropathy is manifested by no more than moderate incomplete paralysis of the sciatic nerve. 4. For the period prior to December 18, 2018, the Veteran's right lower extremity peripheral neuropathy is not manifested by moderate incomplete paralysis of the sciatic nerve. 5. For the period prior to December 18, 2018, the Veteran's left lower extremity peripheral neuropathy is not manifested by moderate incomplete paralysis of the sciatic nerve. 6. For the period from April 27, 2009 to April 26, 2010, the Veteran does not meet the schedular requirements for TDIU; the preponderance of the evidence is against finding that her service-connected disabilities were so severe as to preclude all forms of substantially gainful employment and referral for extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for lumbosacral sprain have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243. 2. For the period from December 18, 2018, the criteria for a 20 percent rating, and no more, for right lower extremity peripheral neuropathy have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. For the period from December 18, 2018, the criteria for a 20 percent rating, and no more, for left lower extremity peripheral neuropathy have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. For the period prior to December 18, 2018, the criteria for a rating greater than 10 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 5. For the period prior to December 18, 2018, the criteria for a rating greater than 10 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 6. For the period from April 27, 2009 to April 26, 2010, the criteria for TDIU have not 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 for training from March 2002 to September 2002. In January 2020, the Board denied a rating greater than 20 percent for lumbosacral strain; denied ratings greater than 10 percent for right and left lower extremity disabilities (characterized as foot numbness with plantar fasciitis (lower extremity peripheral neuropathy) for the period prior to January 10, 2019; and granted 20 percent ratings for right and left lower extremity disabilities from January 10, 2019. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in December 2020, the Court granted the parties' joint motion vacating and remanding the matters identified for action consistent with its terms. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period 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). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. Pursuant to the joint motion, the parties agreed that the Board erred when it failed to address whether increased ratings were warranted for any of the disabilities on appeal prior to April 27, 2010, to include TDIU. Specifically, the parties noted that the appellant's claim for increase was received on April 27, 2010 and thus, the relevant period on appeal begins one year prior. In support, the parties cited 38 C.F.R. § 3.400(o)(2), which in pertinent part provides that the effective date for increased ratings is the "[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim." Procedurally, this case stems from a November 2010 rating decision and involves a direct appeal of the ratings assigned. Regarding the increased rating assigned for the thoracolumbar spine, the Veteran never appealed the effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (Once a decision assigning an effective date becomes final, that assignment cannot be challenged through a freestanding claim for entitlement to an earlier effective date). The increased ratings assigned for the lower extremities resulted in staged ratings and the dates assigned will be considered within that framework. On review, this is not an effective date case and the Board questions the applicability of the cited regulation. In an effort to comply with the joint motion, however, the Board will consider all evidence beginning in the one-year prior to the date of claim to determine whether higher ratings are warranted in excess of those currently assigned. Entitlement to a rating greater than 20 percent for lumbosacral sprain In November 2010, VA increased the rating for lumbosacral strain to 20 percent effective April 27, 2010. The Veteran disagreed with the rating and perfected this appeal. The appellant contends that the assigned rating does not adequately reflect the severity of her disability. In her April 2012 Form 9, she reported that she is always in pain and can barely bend in any direction. Walking is a nightmare and she must walk bent over due to the severity of the pain. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. The joint motion notes that various VA treatment records in the one year prior to the claim document the Veteran's reports of worsening low back pain. On review, records dated in September 2009 show the Veteran reported chronic low back pain, always present and worse later in the day. She also had frequent low back spasms. Physical examination revealed lumbar hyperlordosis. The November 2009 neurology consult notes back pain, likely musculoskeletal. Physical examination of the back revealed no focal tenderness. A February 2010 neurology note indicates low back pain fairly steady but worse with prolonged standing and other activity. The Veteran underwent a VA examination in August 2010. She reported stiffness, spasms, decreased motion, and numbness. The pain occurs constantly and travels down her legs. The pain level is moderate and exacerbated by physical activity. It is relieved by rest, pain medications, and muscle relaxers. During flare-ups she experiences functional impairment which is described as pain and limitation of motion of the joint. She reported functional impairment in walking, exercising, and day to day activities. Objectively her posture was guarded due to the back and there was increased lordosis due to her body habitus. Gait was guarded and antalgic due to knee and left leg pain. Examination of the thoracolumbar spine showed no muscle spasm or tenderness. There was guarding but spinal contour was preserved. The guarding produced an abnormal gait. There was no ankylosis. Range of motion was forward flexion to 70 degrees, with pain beginning at 45 degrees; extension to 10 degrees with pain beginning at 10 degrees; right lateral flexion to 30 degrees with pain beginning at 30 degrees; left lateral flexion to 30 degrees with pain beginning at 20 degrees; right rotation to 30 degrees with pain beginning at 30 degrees; and left rotation to 25 degrees with pain beginning at 20 degrees. Repetitive motion was possible with no additional limitation in range of motion and the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. X-rays of the lumbar spine were within normal limits. On VA back examination in October 2016, the Veteran reported low back pain worsening over time and resulting in the need for a walker. She denied flare-ups but reported functional impairment as having to lean on things if walking too far, cannot do heavy lifting, cannot run and cannot stand or ride in a car for long. Range of motion of the thoracolumbar spine was forward flexion 0 to 45 degrees; extension 0 to 15 degrees; right and left lateral flexion 0 to 15 degrees; and right and left lateral rotation 0 to 15 degrees. Range of motion loss was primarily due to morbid obesity and severe general deconditioning and secondarily due to chronic spinal disease. Poor forward flexion limited lifting ability and reduced lateral flexion and rotation limited dexterity for general physical work. There was pain noted in all ranges of motion and it did cause functional loss. She was able to perform repetitive-use testing with no additional loss of range of motion. The examiner stated, however, that pain was increased with extended use, especially lifting or twisting motions which does restrict her ability to continue. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. There was no guarding or muscle spasm. The Veteran most recently underwent a VA back examination in December 2018. She reported her condition had worsened. Her back hurts if she sits or stands for too long and it is not possible to pick up heavy objects. She reported flare-ups noting that the pain puts her on her knees, and she cannot bend at all. She described functional impairment as an inability to lift, bend, ride in a car for too long, or walk for long periods of time. Range of motion of the thoracolumbar spine was reported as normal with flexion to 90 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees; and right and left lateral rotation to 30 degrees. Pain was noted in forward flexion, extension, and left lateral flexion. There was evidence of pain with weightbearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use or during flare-ups. There was no muscle spasm, but the Veteran did exhibit guarding which did not result in abnormal gait or abnormal spinal contour. There were no additional factors contributing to disability. There was no ankylosis. The examiner indicated that the Veteran had intervertebral disc syndrome with episodes of bed rest having a total duration of at least 1 week but less than 2 weeks during the past 12 months. On review, there is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine at any time during the applicable appeal period. In making this determination, the Board acknowledges the Veteran's reports of pain and functional impairment, to include that she can barely bend. The Veteran is competent to report the severity of her symptoms, but the Board does not find adequate pathology sufficient to support a higher rating based on painful motion or other factors. As set forth, VA examinations show she has motion in all planes with flexion ranging from 45 to 90 degrees. The overall evidence does not support finding that the disability picture more nearly approximates the criteria for a 40 percent rating. The Board has also considered that the most recent VA examination shows intervertebral disc syndrome with incapacitating episodes. It did not, however, indicate incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months and a rating in excess of 20 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board acknowledges the complaints of spasm and findings of hyperlordosis in the one-year period prior to the claim for increase. There is, however, no indication that the spasm was so severe as to cause the abnormal spinal contour and subsequent VA examination suggests the lordosis was due to body habitus. Finally, the Board acknowledges that the diagnostic codes for the musculoskeletal system were changed effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76456, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). However, the new criteria are not relevant in this case because no medical evidence pertaining to the thoracolumbar spine has been received after the effective date. Therefore, the Board has applied the rating criteria that were in place prior to February 7, 2021. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 4.3. The claim is denied. Entitlement to increased ratings for right and left lower extremity peripheral neuropathy In November 2010, VA continued 10 percent ratings assigned for right and left foot numbness with plantar fasciitis. The Veteran disagreed with the ratings and perfected this appeal. In January 2020, VA implemented the Board's decision increasing the ratings to 20 percent effective from January 10, 2019 resulting in staged ratings. The issues have been phrased as right and left foot numbness with plantar fasciitis and in January 2020, the Board added "peripheral neuropathy". On review, the evidence is inconsistent as to whether the foot and ankle numbness is related to bilateral plantar fasciitis or to the back and the opinions of record vary. Regardless, the disorders have consistently been evaluated under that portion of the rating schedule pertaining to neurological conditions. See 38 C.F.R. § 4.124a. The Board further notes that Veteran is currently in receipt of a separate 30 percent rating for bilateral plantar fasciitis with metatarsalgia. To avoid any duplicate ratings or pyramiding, the Board will list the issues as peripheral neuropathy of the right and left lower extremities and will limit its discussion to same. The AOJ evaluated the Veteran's disorders as paralysis of the posterior tibial nerve, which is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8525. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8625 and 8725). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is also rated as 10 percent disabling. Severe incomplete paralysis is rated as 20 percent disabling. A 30 percent rating is assigned for complete paralysis of all muscle of the foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. As discussed below, medical evidence throughout the appeal period notes impairment of multiple nerves in the lower extremities. On review, these all involve the sciatic nerve branch and thus, separate evaluations are not warranted. See 38 C.F.R. § 4.14. The most recent peripheral nerves examination indicates impairment of the sciatic nerve specifically. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. The Board observes that Diagnostic Code 8520 provides for the highest ratings for impairment as concerns any of the nerves in the sciatic branch. Accordingly, the Board will apply this diagnostic code throughout. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). As discussed in detail above, this appeal involves staged ratings. The joint motion further stated that the Board failed to provide adequate reasons and bases for selecting January 10, 2019 as the effective date for the 20 percent ratings. Specifically, that although the examination was signed on January 10, 2019, it was conducted on December 18, 2018. On remand, the Board was to again review the evidence and reassess the ratings and effective dates assigned for the lower extremity neuropathy disabilities. VA records dated in September 2009 document complaints of bilateral lower extremity neuropathy, left greater than right. Neurologic examination showed no gross motor deficits. Deep tendon reflexes were 2+ in the knees and ankles bilaterally and there was normal muscle tone in all extremities. On neurology consult in November 2009, the Veteran reported various symptoms to include pain and tingling in her legs. Objectively, tone and bulk were normal. Strength was 5/5 in the lower extremities bilaterally with diffuse give way except for 5-/5 strength in left foot dorsiflexion and eversion/inversion. Sensation was decreased in the lateral lower leg and dorsal foot left greater than right but was intact to vibration. Deep tendon reflexes were 2+ bilaterally. EMG and nerve conduction velocity testing of the bilateral lower extremities was reported as a normal study in January 2010. In February 2010, the Veteran was seen in follow up. Physical examination showed strength 5/5 except for left dorsiflexion and plantar flexion 4+ to 5-/5. Sensation was mildly patchy diminished on the left. Reflexes were 2+ throughout. Gait was stable with mild antalgia. On VA examination in August 2010, the Veteran reported tingling and numbness, abnormal sensation, pain, anesthesia, and weakness of the lower extremities. Walking was unsteady but she did not require an assistive device for ambulation. On neurologic examination of the lower extremities, motor function was within normal limits. Sensory examination to pinprick/pain, touch, position, vibration, and temperature was intact on the right. The left sensory function for the peroneal nerve was decreased. Right and left lower extremity reflexes were 2+ at the knees and ankles. There was neuralgia of the peroneal nerve. VA records dated in June 2015 note the Veteran's complaints that she cannot put pressure on her left leg. On neurologic examination, deep tendon reflexes were 2+ at the knees and 1+ at the ankles. On VA peripheral nerves examination in October 2016, the Veteran reported mild intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness in the right and left lower extremities. Muscle strength was normal in the lower extremities and there was no muscle atrophy. Reflexes were normal at the knees and ankles. Sensation testing for light touch was decreased at the bilateral lower leg/ankle and foot/toes. There were no trophic changes. Gait was abnormal and this was attributed to chronic back pain with morbid obesity and general deconditioning. The examiner stated that there was mild incomplete paralysis of the following nerves on both sides: external popliteal (common peroneal), musculocutaneous (superficial peroneal), and anterior tibial (deep peroneal). The remaining lower extremity nerves were reported as normal. The Veteran used a walker. VA records dated in February 2017 document the Veteran's report that she has continuous pain in the back and left foot. Her left leg buckles and gives out when she is having shooting pain and spasms. No gross motor deficits were shown on neurologic examination. The Veteran most recently underwent a VA peripheral nerves examination on December 18, 2018. She reported severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the right and left lower extremities. Muscle strength testing was 5/5 in the lower extremities and there was no muscle atrophy. Reflexes were normal at the knees and ankles. Sensation testing for light touch was decreased at the left lower leg/ankle and foot/toes but was otherwise normal in the lower extremities. There were no trophic changes. Gait was normal. The examiner indicated that there was moderate incomplete paralysis in the sciatic nerve on the right and the left. The December 2018 VA back examination also noted involvement of the sciatic nerve on both sides and the level of severity was reported as moderate. Private podiatry records dated in February 2019 show the Veteran continued to complain of left foot pain. There was a positive Tinel's sign with palpation overlying the deep peroneal nerve on the left. Epicritic sensation was intact and there were no focal deficits. Muscle strength was good for extensors, flexors, invertors, and evertors bilaterally. Assessment was deep peroneal neuritis, left lower extremity. A diagnostic nerve block was performed, and she was subsequently referred for neurectomy of the deep peroneal and sural nerves. Authorization for the surgery was requested but it is unclear whether it was ever accomplished. On review, evidence throughout the appeal period shows the Veteran has significant complaints related to the lower extremities. She is competent to report her symptoms. Objective evidence, however, does not appear to support the claimed severity and overall findings show some decreased sensation and slight reduction in strength. Reflexes are generally reported as normal although there was an isolated finding of hypoactive reflexes (1+). There is no evidence of muscle atrophy or trophic changes. Regardless, the December 18, 2018 VA examination indicates that there was moderate incomplete paralysis of the sciatic nerve on both sides. This supports a 20 percent rating for both the right and left lower extremities from that date. In making this determination, the Board notes that it is not disturbing the favorable findings as referenced in the joint motion (i.e., the increases to 20 percent for right and left lower extremity peripheral neuropathy). Rather, it is granting the increase (staged ratings) from the date of examination rather than date of signature as suggested. A higher rating is not warranted because the disability picture does not more nearly approximate moderately severe incomplete paralysis. Again, the objective findings do not reflect that level of impairment and the examiner specifically stated that the severity was moderate. For that portion of the appeal period prior to December 18, 2018 (April 27, 2009 to December 17, 2018), objective findings do not indicate any significant impairment in motor or sensory functions, and examinations and outpatient records suggest the nerve impairment was no more than mild. The disability picture prior to December 18, 2018 does not more nearly approximate moderate incomplete paralysis of the sciatic nerve on either side and ratings greater than 10 percent are not warranted. Entitlement to TDIU for the period prior to April 27, 2010 In February 2011, VA granted entitlement to TDIU effective April 27, 2010. The Veteran did not appeal the effective date assigned. The joint motion, however, essentially indicates that this was not a full grant as it did not encompass the entirety of the now expanded appeal period (i.e., from April 27, 2009). See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). Accordingly, the Board will consider entitlement to TDIU for the period from April 27, 2009 to April 26, 2010. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As is relevant to the period in question, the Veteran was service connected for lumbosacral strain, left foot numbness with plantar fasciitis, right foot numbness with plantar fasciitis, and status post stress fracture/tibial stress syndrome right and left. Combined evaluation was 40 percent from October 26, 2005. Service connection for depressive disorder was established effective April 27, 2010 resulting in a combined evaluation of 70 percent from that date. The schedular requirements for TDIU were not met prior to April 27, 2010. Notwithstanding, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b). In a statement submitted in support of her 2010 claim for increase, the Veteran reported that she had to resign her 5-year employment as a dental assistant because of her feet, back, and knees. The Veteran underwent a VA back and lower extremities examination in August 2010. The examiner stated that the effects of the conditions on her usual occupation were no prolonged standing (longer than 15 minutes), or walking. She would need a light duty desk job with the ability to get up and move around as needed. The Veteran underwent a VA mental disorders examination in January 2011. Highest level of education obtained before service was reported as two associate degrees. She worked at the Department of Corrections for 10 years. Following service, she continued her education by attending school for dental assistant training. The Veteran reported that she resigned from her job as a dental assistant because she had too much pain. She also reported that she had been working for the past 3 years as an afterschool program worker for 3 hours a day. Her relationships with supervisors and co-workers were good while performing this job and she had not lost any time from work. (Continued on the next page) For the period in question, the Veteran was service connected for back and lower extremity disabilities. These disabilities would obviously impact her ability to work in a job that requires a lot of standing, walking, etc. and this is reflected in the ratings assigned. The evidence does not support finding that these disabilities were so severe that she was unable to engage in any form of substantially gainful employment when considering her education and occupational experience. Indeed, she was apparently working on a part-time basis and she has not argued or submitted information suggesting that this was marginal employment. Referral for extraschedular consideration is not warranted. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 4.3. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Carsten, 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.