Citation Nr: 25005248 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 16-30 138 DATE: April 17, 2025 ORDER Entitlement to an initial rating of 20 percent, but no higher, for left lower extremity radiculopathy is granted. Entitlement to an initial rating of 20 percent, but no higher, for right lower extremity radiculopathy is granted. REMANDED Entitlement to an increased initial rating of 10 percent for a lumbar spine disability prior to December 26, 2019, and 20 percent beginning December 26, 2019, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU), to include on an extraschedular basis, prior to January 18, 2024, is remanded. Entitlement to the grant of eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35, prior to January 18, 2024, is remanded. FINDINGS OF FACT 1. The evidence of record shows the Veteran's left lower extremity manifested to symptoms of moderate incomplete paralysis with no marked muscular atrophy or complete paralysis. 2. The evidence of record shows the Veteran's right lower extremity manifested to symptoms of moderate incomplete paralysis with no marked muscular atrophy or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.124a, DC 8520. 2. The criteria for an initial disability rating of 20 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1976 to August 1980, January 2003 to January 2005, January 2008 to June 2009, July 2010 to September 2011, and October 2011 to October 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 and an April 2020 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In a June 2019 decision, the Board remanded the claim of an increased rating for the Veteran's service-connected degenerative disc disease of the lumbar spine for additional development. In an August 2021 decision, the Board denied a rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to December 26, 2019, and a rating in excess of 20 percent for degenerative disc disease of the lumbar spine from December 26, 2019. The Veteran appealed that decision to the United States Court of Appeals for Veteran Claims (Court). In a July 2022 Order, the Court granted a Joint Motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the Joint Motion. The Board then remanded the appeal in November 2022 for additional development. In a July 2023 decision, the Board denied the Veteran's claim for an increased rating in excess of 10 percent for a lumbar spine disability prior to December 26, 2019, and in excess of 20 percent from December 26, 2019. Additionally, the Board, in pertinent part, denied ratings in excess of 10 percent for the Veteran's service-connected left and right lower extremity radiculopathy beginning October 27, 2021. The Veteran appealed that decision to the Court. In a June 2024 Joint Motion for a Partial Remand, vacated the Board's decision, and remanded the case to the Board for action consistent with the Joint Motion. Increased ratings for radiculopathy VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. In increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In such claims, VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Hart, 21 Vet. App. at 509. The Veteran's radiculopathy of the left and right lower extremities is rated under 38 C.F.R. § 4.124a, DC 8520. At the outset, the Board acknowledges that VA has recently revised portions of the rating criteria for the musculoskeletal system, effective February 7, 2021. 82 F.R. 35719. Sciatic nerve neurological manifestations are rated under Diagnostic Codes 8520, 8620, or 8720, as respectively, paralysis, neuritis, or neuralgia of the sciatic nerve, and have not changed. Under these criteria, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. 38 C.F.R. § 4.124a, DC 8520. Moderate incomplete paralysis is rated as 20 percent disabling. Id. Moderately severe incomplete paralysis is rated as 40 percent disabling. Id. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Id. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. Id. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. This Note 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). Accordingly, while wholly sensory manifestations are generally considered mild, but can be moderate, the inverse is not necessarily true. Manifestations with both sensory manifestations and non-sensory manifestations such as decreased sensation, loss in strength, or loss in reflexes, are not necessarily entitled to a higher evaluation; the Board must consider the predominant symptoms and the overall level of impairment. Thus, manifestations which are primarily sensory, but also include some mild non-sensory symptoms such as diminished reflexes or minor strength deficits, can meet the criteria for either mild or moderate incomplete paralysis. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. 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. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board looks to VA's Adjudication Procedures Manual [M21-1] for guidance. The M21-1 provides benchmarks for mild, moderate, moderately severe, and severe peripheral nerve conditions, and "[a]lthough the Board is not bound by the M21-1, the standards provided in the M21-1 are 'relevant guidance promulgated for the purpose of facilitating the efficient and proper resolution of claims,' which the Board must consider and address as part of its duty to provide a reasoned explanation for its decision." Chavis v. McDonough, 34 Vet. App. 4, 17-18 (2021) (citing Healey v. McDonough, 33 Vet. App. 321 (2021) and Overton v. Wilkie, 30 Vet. App. 257, 264 (2018)). The Board finds VA's internal guidelines of the M21-1 persuasive and applicable to this case. See Gray v. Sec'y of Veterans Affairs, 875 F.3d 1102, 1108 (Fed. Cir. 2017); Overton, 30 Vet. App. at 264. Specifically, the M21-1 provides the following guidelines with respect to evaluation of peripheral nerve conditions, to include the sciatic nerve under DC 8520: The mild level of evaluation would more reasonably be assigned when sensory symptoms are: recurrent but not continuous, assigned a lower medical grade reflecting less impairment; and/or affecting a smaller areas in the nerve distribution. In general, adjudicators are advised to look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. Further, a very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. The M-21-1 advises to reserve the moderate level of evaluation as "the maximum evaluation reserved for the most significant cases of sensory-only impairment." Such symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases, the symptoms are continuous, assigned a higher medical grade reflecting greater impairment, and/or affecting a larger area in the nerve distribution. Other sign/symptom combinations that may fall into the moderate category include: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. As to the "moderately severe" evaluation (found only for the sciatic nerve), the M-21-1 advises this evaluation is appropriate where there is "motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability." Atrophy may also be present. However, where there is marked muscular atrophy, a rating contemplating severe incomplete paralysis is warranted. A "severe" evaluation is characterized by motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve (Diagnostic Code 8520) marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. The term "marked" is also not defined in Diagnostic Code 8520, nor within any relevant regulation. Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805-06 (Fed. Cir. 2010). Thus, the Board turns to the generally understood definitions of the term. "Marked," as an adjective, is defined as "having a distinctive or emphasized character." See Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/marked, Definition 2 (last visited April 16, 2025). Thus, the associated muscle atrophy must be distinct or emphasized. Left lower extremity radiculopathy Right lower extremity radiculopathy The Veteran seeks increased initial ratings for his service-connected left lower extremity sciatic nerve radiculopathy and right lower extremity sciatic nerve radiculopathy. The Veteran was afforded a VA examination in November 2021. The VA examiner noted the Veteran did not have a peripheral nerve condition or peripheral neuropathy. However, the Veteran asserted that he first began having pain in his left foot that then progressed to both feet. The Veteran asserted that his feet swelled frequently. The Veteran asserted that he suffers from numbness in both feet, that remained after he was treated for gout. The Veteran asserted to suffering from swelling from his ankles to his toes, bilaterally, and suffering from bilateral lower extremity paresthesia. In February 2022 VA treatment records, the Veteran underwent an EMG. The Veteran asserted "dull, dead" numbness in the toes of his bilateral feet. The numbness spread to the balls of his bilateral feet and all of his toes. The Veteran asserted that the numbness was constant. The treating physician diagnosed the Veteran with chronic, symmetric, predominantly axonal, sensory greater than motor, peripheral neuropathy. The physician also noted there was no evidence of acute lumbar or sacral radiculopathy involving either lower limb. In February 2022 correspondence, the physician noted the Veteran suffered from chronic nerve damage. In a May 2022 VA examination, the Veteran was noted to suffer from bilateral lower extremity radiculopathy. On physical examination, the Veteran exhibited bilateral mild intermittent pain (usually dull), bilateral mild paresthesias and/or dysesthesias, and bilateral mild numbness. The VA examiner indicated that the nerve roots involved were the L2/L3/L4 nerve roots of the femoral nerve. The neurological examination revealed normal strength in the bilateral lower extremities and normal deep tendon reflexes in both lower extremities. The Veteran had decreased sensation to light touch in both his right and left lower extremities. The Veteran did not display muscle atrophy or trophic changes attributable to bilateral lower extremity radiculopathy. In a May 2022 Peripheral Nerves Conditions VA examination, the Veteran was diagnosed with bilateral peripheral neuropathy of the lower extremities. The Veteran asserted that he began to have numbness and tingling in both feet that radiated up to his calves beginning in 2021. On physical examination, the Veteran exhibited bilateral mild intermittent pain (usually dull), bilateral mild paresthesias and/or dysesthesias, and bilateral mild numbness. The neurological examination revealed normal strength in the bilateral lower extremities and normal deep tendon reflexes in both lower extremities. The Veteran had decreased sensation to light touch in both his right and left lower extremities. The Veteran did not display muscle atrophy or trophic changes attributable to bilateral lower extremity radiculopathy. The VA examiner noted the Veteran suffered from mild incomplete paralysis of his sciatic nerve of in both his left and right lower extremities. In an August 2022 lay statement, the Veteran asserted that his bilateral lower extremity radiculopathy had greatly affected the quality of his life. The Veteran asserted to no longer being able to enjoy outdoor activities, that he had constant swelling in his ankles and feet, and constant numbness and tingling in his toes. The Veteran asserted that he spent most of his days sitting with his feet elevated to keep the swelling down and that he wore over-the-counter compression socks whenever he left his home. The Veteran was afforded a VA examination in November 2022. The VA examiner diagnosed the Veteran with bilateral lower extremity radiculopathy. On physical examination, the Veteran exhibited right lower extremity mild intermittent pain (usually dull) and moderate intermittent pain (usually dull) of the left lower extremity, bilateral mild paresthesias and/or dysesthesias, and bilateral mild numbness. The VA examiner indicated that the nerve roots involved were the L4/L5/S1/S2/S3 nerve roots of the sciatic nerve. The neurological examination revealed normal strength in the bilateral lower extremities and normal deep tendon reflexes in both lower extremities. The Veteran had normal sensation to light touch in both his right and left lower extremities. The Veteran did not display muscle atrophy or trophic changes attributable to bilateral lower extremity radiculopathy. The Veteran's straight leg raising test was positive. In an April 2023 statement, the Veteran asserted that he had chronic nerve damage in both legs, daily swelling in his ankles and feet, and constant numbness in his toes. The Veteran asserted that his bilateral lower extremity radiculopathy limited his ability to go for walks and to exercise. In a January 2025 statement, the Veteran's wife asserted that the Veteran experienced difficulty walking for long periods of time due to pain, numbness, and swelling in both of his legs. The Veteran's wife asserted that his right leg seems the worst. In a March 2025 statement, the Veteran asserted to constant swelling in his ankles and feet and numbness in his feet and toes. The Veteran asserted his radiculopathy has affected the quality of his life by being unable to exercise and drive a vehicle because he had trouble feeling the brake and the gas pedals. In a March 2025 private medical opinion, the physician reviewed the Veteran's medical history and documented the Veteran's symptoms. The physician opined that given the Veteran's symptoms of back pain and paresthesias that were exacerbated by activity along with sensory dysfunction and objective motor weakness at the hip, knee, ankle, and foot, the Veteran's symptoms were most consistent with moderate to severe radiculopathy. The physician noted his condition imposed significant functional limitations, particularly in prolonged standing, walking, and maintaining balance, necessitating frequent rest periods and assistive device use. After reviewing the evidence as a whole, the Board concludes that the Veteran's sciatic nerve radiculopathy of the bilateral lower extremities most closely approximates ratings of 20 percent, but no higher, for the period on appeal. The Board acknowledges the November 2021, May 2022, and November 2022 VA examinations that diagnosed the Veteran with mild sciatic nerve radiculopathy of the bilateral lower extremities. However, the Board notes the Veteran's EMG report and VA medical records as well as the increase in severity of symptoms noted in the March 2025 private medical examination and acknowledges a worsening of symptoms over time. The Board acknowledges the Veteran's lay statements asserting that his symptoms continued to get worse and that he suffers from numbness, swelling, and tingling in both of his lower extremities. The Board acknowledges that 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. Therefore, the Board finds that the Veteran's sciatic nerve radiculopathy of the bilateral lower extremities most closely approximates ratings of 20 percent, but no higher, for the period on appeal. See 38 C.F.R. § 4.124a, DC 8520. The Board finds the medical and lay evidence of record does not show that the Veteran's bilateral lower extremity radiculopathy manifested as symptoms warranting disability ratings in excess of 20 percent under 38 C.F.R. § 4.12a, DC 8520. The Board acknowledges the March 2025 private physician found that the Veteran's symptoms were most consistent with moderate to severe radiculopathy and that the Veteran's sciatic nerve involvement was not wholly sensory. The March 2025 physician found that the Veteran had objective motor weakness at the hip, knee, ankle, and foot and the medical and lay evidence also shows that the Veteran had decreased mobility with limitations in standing, walking, and maintaining balance. However, the overall evidence of record does not show the Veteran suffered from complete impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. Further, there is no evidence of bowel or bladder impairment. Accordingly, the Veteran's bilateral lower extremity radiculopathy has not displayed moderately severe or severe incomplete paralysis or complete paralysis necessary for increased evaluations. The Board has also considered whether any other diagnostic codes are applicable to the Veteran's service-connected radiculopathy conditions. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Here, however, the objective evidence shows that the Veteran's symptomatology most closely reflects the current diagnostic code, DC 8520. In sum, the Board finds that, as the evidence persuasively favors increased initial ratings of 20 percent, but no higher, for the Veteran's bilateral lower extremity radiculopathy, it is in approximate balance, and the benefit-of-the-doubt rule is for application. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND Lumbar spine disability The Veteran generally contends that he suffers from symptoms of his service-connected lumbar spine disability warranting an increased initial rating. While the Board regrets further delay, another remand is necessary to provide the Veteran with an adequate medical examination pursuant to the Court's June 2024 Order, and to ensure substantial compliance with the November 2022 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall, 11 Vet. App. at 271. Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. The Veteran was afforded a VA examination in November 2022. The VA examiner did not perform any testing of the lumbar spine. The VA examiner relied on a March 2013 x-ray finding the Veteran's back showed "moderate degenerative changes." The VA examiner did not discuss whether any tests or studies were indicated. Additionally, the VA examiner documented pain on weight-bearing, nonweight-bearing, and active motion, but only provided range of motion estimates for active motion. The VA examiner did not explain why testing could not be performed for either weight-bearing or nonweight-bearing. Thus, the November 2022 VA examination failed to comply with Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, it cannot be said that there has been substantial compliance with the Board's previous remand instructions. See Stegall, 11 Vet. App. at 271; D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Thus, remand is necessary to provide the Veteran a medical opinion addressing the Veteran's back disability in substantial compliance with the Board's previous remand instructions. See Stegall, supra. TDIU The Board notes that the Veteran's claim for a TDIU is part and parcel of the claims for increased rating for right lower extremity and left lower extremity radiculopathy and an increased rating for a lumbar spine disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (the issue of entitlement to TDIU takes its place as part of an increased rating claim where a claimant or the evidence reasonably raises the possibility that the relevant disability causes or contributes to a claimant's unemployability). A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). In this case, the Veteran was granted TDIU, effective January 18, 2024. Therefore, for the relevant remaining period on appeal prior to January 18, 2024, service connection was in effect for the following disabilities: chronic sinusitis, rated as 30 percent disabling from February 8, 2022; lumbar spine L5-S1 degenerative disc disease rated as 10 percent disabling from October 28, 2012 and 20 percent disabling from December 26, 2019; right knee patellofemoral syndrome with limitation of flexion rated as 10 percent disabling from October 28, 2012 and 20 percent disabling from January 18, 2024; right lower extremity radiculopathy rated as 20 percent disabling from October 27, 2021; left lower extremity radiculopathy rated as 20 percent disabling from October 27, 2021; rhinitis rated as noncompensable from February 8, 2022; erectile dysfunction rated as noncompensable from August 2, 2022; and hiatal hernia rated as noncompensable from August 10, 2022. The Veteran has a combined rating of 20 percent from October 28, 2012, a combined rating of 30 percent from December 26, 2019, and a combined rating of 60 percent from October 27, 2021. Based on the foregoing, the Veteran does not meet the percentage standards set forth in § 4.16(a) prior to the grant of TDIU on January 18, 2024. Therefore, the Board may not consider the Veteran's claim for a TDIU in the first instance. Nevertheless, the Court of Appeals for Veterans Claims (Court) has directed that the Board should refer a TDIU claim for extraschedular evaluation under 38 C.F.R. § 4.16 (b), in all instances where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. See Ray v. Wilkie, 31 Vet. App. 58, 66-67 (2019); Snider v. McDonough, No. 19-6707 (CAVC November 19, 2021). While the Court has not defined the threshold of evidence sufficient to "substantiate a reasonable possibility" in this context, the Board observes that in other contexts the Court has found this language to be a "low" threshold. See, e.g., Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (noting that Congress intended a low threshold by requiring a claim to be reopened unless there is no reasonable possibility of substantiating a claim). Ultimately, the question of referral is a factual finding that is based on a much lower evidentiary threshold than that for a grant of an extraschedular TDIU. Thus, the Board must refer the claim for extraschedular consideration upon some minimal evidence that the Veteran's service-connected conditions could render him unemployable. In this case, the Board finds the low threshold for extraschedular TDIU referral is met. The Veteran has been unemployed since his retirement from the United States Postal Service on January 29, 2021. The Veteran retired in January 2021 due to his worsening service-connected disabilities. The Veteran has a high school education and has worked exclusively as a postal worker. The Veteran has asserted this his service-connected lumbar spine disability as well as his bilateral lower extremity radiculopathy, caused his early retirement and has kept him from performing work consistent with his past occupational experience. The Veteran asserted that his service-connected disabilities prevent him from working due to pain, spasms, being unable to reach, unable to lift, unable to pull, and take frequent breaks. The Veteran asserted to having difficulty running, bending, carrying, walking, standing, sitting for long periods of time, and climb ladders or stairs. The Board finds that the low threshold for extraschedular TDIU referral has been met. The Board reiterates that this decision does not constitute a finding that the Veteran is unemployable, as the language in 38 C.F.R. § 4.16(b) regarding extraschedular referral may otherwise seem to imply, but rather that it is reasonably possible he could be, in light of his education, occupational history, and the combined effects of all service-connected conditions. Therefore, remand is required for referral of the issue of entitlement to an extraschedular TDIU to the Director of Compensation Service, pursuant to 38 C.F.R. § 4.16(b). DEA As the DEA claim is premised on the effective date of the Veteran's TDIU, the issue of DEA is inextricably intertwined with that issue. Accordingly, the Board will defer decision on the matter. The matters are REMANDED for the following action: 1. Associate any updated VA treatment records with the Veteran's claims file. Request that he identify any outstanding private treatment records, then obtain and associate those records with the claims file. 2. Then, schedule the Veteran for a VA back examination to determine the current symptoms, level of severity, and functional impairment associated with his service-connected lumbar spine disability. The examiner must review the Veteran's claims file, and the examination report should note such review. Any indicated evaluations, studies, and tests should be conducted. All lay assertions must be fully considered and discussed by the examiner. If evaluations, studies, and tests are not indicated, the examiner must provide a rationale. The examiner should report all signs and symptoms necessary for evaluating the Veteran's lumbar spine disability under the rating criteria. The examiner should also provide the range of motion in degrees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner should inquire as to periods of flare-ups and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why. All opinions expressed must be accompanied by supporting rationale. 3. Refer the matter of entitlement to an extraschedular TDIU to the Director of Compensation Service for adjudication under 38 C.F.R. § 4.16(b). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Glass, Associate 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.