judge_norm: MELANIE J MANN

condition: radiculopathy

text:
Citation Nr: 24018000
Decision Date: 04/26/24	Archive Date: 04/26/24

DOCKET NO. 17-05 773A
DATE: April 26, 2024

ORDER

Entitlement to a 40 percent disability rating for a lumbar spine disability is granted.

Entitlement to an initial 40 percent disability rating for radiculopathy of the right lower extremity is granted.

Entitlement to an initial 40 percent disability rating for radiculopathy of the left lower extremity is granted.

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. Resolving all reasonable doubt in the Veteran's favor, his functional impairment due to his lumbar spine disability more closely approximates forward flexion to 30 degrees or less.

2. The Veteran's radiculopathy of the right lower extremity is manifest by moderately severe incomplete paralysis.

3. The Veteran's radiculopathy of the left lower extremity is manifest by moderately severe incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a 40 percent disability rating for a lumbar spine disability have been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

2. The criteria for entitlement to an initial 40 percent disability rating for radiculopathy of the right lower extremity have been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.124a, Diagnostic Code 8520.

3. The criteria for entitlement to an initial 40 percent disability rating for radiculopathy of the left lower extremity have been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S Air Force from June 1980 to June 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) regional office (RO) which, in pertinent part, continued a 10 percent disability rating for the Veteran's lumbar spine disability. The Veteran timely appealed.

In July 2019, the Board issued a decision denying entitlement to a disability rating in excess of 10 percent. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2020, the parties filed a Joint Motion for Partial Remand (Joint Motion), agreeing that the Board erred in relying on an August 2015 VA examination that did not comply with Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). Later that month, the Court issued an Order which granted the motion and remanded the claim back to the Board for readjudication consistent with the terms of the Joint Motion.

The Board remanded the claim in February 2021 to obtain a new VA examination to determine the current severity of the Veteran's lumbar spine disability, including information regarding the severity, frequency, and duration of any flare-ups and the degree of any functional loss during flare-ups. In response, the Veteran was provided a VA examination in June 2021. Based on the findings at this VA examination, the RO increased the Veteran's disability rating for his lumbar spine to 20 percent and granted a separate rating for radiculopathy of the right lower extremity, rated as 20 percent disabling, effective June 9, 2021. While findings of the VA examiner in June 2021 led the RO to increase the Veteran's disability rating, the VA examiner failed to provide a retrospective opinion concerning any additional functional loss during flare-ups based on the information provided in other evidence of record, including during the August 2015 VA examination, as was requested in the February 2021 remand directives. Such information could have resulted in an even higher evaluation. Due to this oversight, the RO did not achieve substantial compliance with the previous remand directive directives, and the Board issued another remand in December 2021. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required).

The Veteran was provided another VA examination as requested in February 2022. Due to the findings in the February 2022 VA examination, the RO granted a separate rating for radiculopathy of the left lower extremity, rated as 20 percent disabling, effective February 2, 2022. In May 2022, the Board issued a decision awarding the Veteran an increased 30 percent disability rating for his lumbar spine disability. The Veteran again appealed to the Court. In a July 2023 Memorandum Decision, the Court set aside the Board's May 2022 decision and remanded the Veteran's claim back to the Board for further proceedings consistent with the decision. Thus, the lumbar spine claim has been appropriately returned to the Board for readjudication.

In Chavis v. McDonough the Court held that an increased rating claim for spine disability in certain circumstances may entail an implied claim for an increased rating for radiculopathy, which the claimant has not specifically raised in his notice of disagreement. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Court made it clear in its July 2023 Memorandum Decision that this is a situation in which such an implied claim has been raised. Thus, the Board must also consider whether the Veteran is entitled to initial disability ratings in excess of 20 percent for his service-connected radiculopathy of the right and left lower extremities.

When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009). Here, several VA examiners have noted that the Veteran's lumbar spine disability adversely impacts his ability to work due to difficulties with prolonged sitting or standing and bending or twisting, which required him to change positions often, as well as unsteady gait and poor balance. Thus, the Board finds that entitlement to a TDIU has been reasonably raised by the record and has been added to the appeal.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. � 1155; 38 C.F.R. � 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. � 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. �� 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. � 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.

Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. � 5107; 38 C.F.R. � 3.102.

1. Entitlement to a 40 percent disability rating for a lumbar spine disability is granted.

The Veteran maintains entitlement to an increased disability rating for his service-connected lumbar spine disability, rated under Diagnostic Code 5242.

Lumbar spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. � 4.71a.

Under the General Rating Formula of Disease and Injuries of the Spine, (Diagnostic Codes 5235-5242), a 10 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; when, muscle spasm, guarding, or localized tenderness is present but does not result in an abnormal gait or abnormal spinal contour; or, when there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. � 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242.

Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. � 4.71, Plate V. Ankylosis is the complete immobility of a joint in a fixed position. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1).

Under the Formula for Rating IVDS based on Incapacitating Episodes a 10 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. � 4.71a. A 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent rating, the highest available, is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id.

For purposes of assigning evaluations for IVDS under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1).

The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the spine, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. � 5110(g); 38 C.F.R. � 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.

The Board notes that, effective February 7, 2021, Diagnostic Code 5242 was amended to include degenerative disc disease other than IVDS.

The Board notes that the spine regulations were also amended to state that Diagnostic Code 5243 governing IVDS should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective February 7, 2021).

Turning to the evidence of record, the Veteran underwent a VA examination in August 2015. There, he described a history of lumbar pain rated 4/10. Regarding flare-ups of the lumbar spine, the Veteran stated that sitting longer than half an hour caused increasing pain rated as 9/10. He reported that he took Motrin/Flexeril for pain relief.

Active range of motion testing was performed. Forward flexion was to 90 degrees, extension was to 30 degrees, right lateral flexion was to 30 degrees, left lateral flexion was to 25 degrees, right lateral rotation was to 30 degrees, and left lateral rotation was to 25 degrees. The VA examiner noted that the Veteran's range of motion was impacted by his effort and hypersensitivity. She observed that pain was noted on forward flexion, left lateral flexion, and left lateral rotation, but that pain did not result in or cause functional loss. There was no evidence of pain with weightbearing, nor was there objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the lumbar spine. The Veteran could perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The VA examiner found that the VA examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. She determined that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with repeated use over a period of time. The Veteran was not examined during a flare-up. The VA examiner found that the VA examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. She determined that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability during flare-ups.

The Veteran exhibited muscle spasm of the lumbar spine which did not result in abnormal gait or abnormal spinal contour. He did not demonstrate localized tenderness or guarding. Muscle strength testing yielded normal results and the Veteran did not have muscle atrophy or ankylosis. The Veteran's reflex and sensory examinations yielded normal results, and straight leg raising tests were negative. He did not have radicular pain or any other signs or symptoms due to radiculopathy, nor did he demonstrate any other neurologic abnormalities or findings. The Veteran was not diagnosed with IVDS of the lumbar spine. He denied the use of assistive devices for his lumbar spine disability. Functional impairment of the Veteran's lumbar spine was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. No other pertinent physical findings, complications, conditions, signs, or symptoms were documented related to the Veteran's lumbar spine disability. Diagnostic testing revealed arthritis. However, it did not reveal thoracic vertebral fracture with loss of 50 percent or more of height. The VA examiner found that the Veteran's lumbar spine disability did not impact his ability to work.

The VA examiner noted no deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weightbearing except as noted. She stated that any opinion regarding what, if when, and to what extent in degrees further repetitive use or reported flare-ups could significantly limit functional ability was not one with literature support, and that she ultimately could not opine, without resorting to mere speculation, a more definite loss of function due to flares or repetitive use over time.

The Veteran attended another VA examination in June 2021. There, he reported that he experienced back pain that radiated down his hips, buttocks, and right leg. He also noted that his right foot and leg would go numb after prolonged sitting. The Veteran denied flare-ups of the lumbar spine. He also denied having any functional loss or functional impairment, including, but not limited to after repeated use over time.

Active range of motion testing was performed. Forward flexion was to 60 degrees, extension was to 25 degrees, right lateral flexion was to 30 degrees, left lateral flexion was to 30 degrees, right lateral rotation was to 30 degrees, and left lateral rotation was to 30 degrees. Pain was noted on forward flexion. Passive range of motion was the same as active range of motion with pain noted on forward flexion. There was no objective evidence of crepitus or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran could perform repetitive use testing with at least three repetitions without additional loss of function or range of motion.

The Veteran did not exhibit localized tenderness, guarding, or muscle spasm of the lumbar spine. Muscle strength testing yielded normal results and the Veteran did not have muscle atrophy or ankylosis. The reflex examination demonstrated hypoactivity in the right knee and right ankle. The sensory examination yielded normal results and straight leg raising tests were negative. The Veteran exhibited signs of radiculopathy, including moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right lower extremity affecting the sciatic nerve. No other neurologic abnormalities were observed. The Veteran was not diagnosed with IVDS of the lumbar spine. The Veteran endorsed the occasional use of a cane for radiculopathy of the right lower extremity. Functional impairment of the Veteran's lumbar spine was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. There were no other pertinent physical findings, complications, signs, or symptoms related to the Veteran's lumbar spine disability. The VA examiner found that the Veteran's disability would adversely impact his ability to work due to his difficulties with prolonged sitting.

In February 2022, the Veteran was provided another VA examination. There, he reported severe, sharp, stabbing back pain radiating into both hips, numbness and tingling of the legs and feet, and weakness of the right leg. He treated the condition with epidural steroid injections, physical therapy, and Motrin. Regarding flare-ups, the Veteran reported that they occurred three to four times a month and lasted for two to three days causing severe, sharp, stabbing back pain radiating into both hips, fatigue, and increased stiffness. Flare-ups were precipitated by sitting, standing, bending, twisting, or heavy lifting, and were alleviated with rest and pain medication. He indicated that he ambulated with a cane during flares due to poor balance and unsteady gait. Concerning functional loss or functional impairment of the lumbar spine including but not limited to after repeated use over time, the Veteran reported difficulty with prolonged sitting or standing, and with bending or twisting. He stated that he had to change positions frequently.

Active range of motion testing was performed. Forward flexion was to 45 degrees, extension was to 15 degrees, right lateral flexion was to 20 degrees, left lateral flexion was to 20 degrees, right lateral rotation was to 20 degrees, and left lateral rotation was to 20 degrees. Pain was noted on all ranges of motion and with weightbearing, non-weightbearing, and active motion. Passive range of motion testing was not performed due to risk of further injury. There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran could perform repetitive testing with at least three repetitions without additional loss of function or range of motion. He was not examined immediately after repeated use over time. Procured evidence suggested that pain, fatigability, and lack of endurance significantly limited the Veteran's functional ability with repeated use over time and during flare-ups. The VA examiner estimated that forward flexion would be limited to 35 degrees, extension would be limited to 10 degrees, right lateral flexion would be limited to 15 degrees, left lateral flexion would be limited to 15 degrees, right lateral rotation would be limited to 15 degrees, and left lateral rotation would be limited to 15 degrees under these conditions.

The Veteran did not exhibit localized tenderness, guarding, or muscle spasm of the lumbar spine. Additional factors contributing to his disability included interference with sitting, interference with standing, less movement than normal, and instability of station. Muscle strength testing yielded normal results and the Veteran did not have muscle atrophy or ankylosis. The Veteran's reflex examination reflected hypoactivity in both ankles. The Veteran's sensory examination reflected decreased sensation to light touch in the Veteran's lower leg/ankle and feet/toes bilaterally. Straight leg raising tests were positive. The Veteran exhibited signs of radiculopathy, including moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right and left lower extremities affecting the sciatic nerves. No other neurologic abnormalities were observed. The Veteran was diagnosed with IVDS of the lumbar spine but had no episodes or acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past year. The Veteran again endorsed the regular use of a cane due to his lumbar spine disability. Functional impairment of the Veteran's lumbar spine was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. No other pertinent physical findings, complications, conditions, signs, or symptoms were documented related to the Veteran's lumbar spine disability. The VA examiner found that the Veteran's disability would adversely impact his ability to work due to his difficulties with prolonged sitting or standing and bending or twisting, which required him to change positions often. Further, the Veteran had poor balance and an unsteady gait requiring a cane during flares.

Following a review of the evidence of record, the Board finds that the Veteran's lumbar spine disability most closely approximates forward flexion to 30 degrees or less, commensurate with a 40 percent disability rating, throughout the appeal period, under Diagnostic Code 5242. The Board acknowledges that the evidence does not reflect forward flexion limited to 30 degrees; it reflects that the Veteran's forward flexion was limited to, at worst, 35 degrees, as documented at the February 2022 VA examination. Further, the evidence does not reflect a diagnosis of favorable ankylosis of the spine, nor has the Veteran himself averred that his spine is ankylosed. However, with regard to functional loss, the Board finds that the Veteran's limitation of movement results in a lumbar spine disability that more closely approximates a higher, 40 percent disability rating, as he has consistently described and demonstrated functional impact on repeated use over time and during flare-ups characterized by severe difficulty with standing, sitting, walking, twisting, bending, and lifting throughout the appeal period. A higher, 50 percent disability rating is not warranted under Diagnostic Code 5242, as the evidence of record fails to show unfavorable ankylosis of the spine. Specifically, the Board finds no evidence that would suggest that the Veteran has been diagnosed with ankylosis of his thoracolumbar spine during any portion of the appellate period.

The Board has also considered whether a higher, 60 percent disability rating is warranted under Diagnostic Code 5243, as the Veteran was diagnosed with IVDS at the February 2022 VA examination. However, at no time has the Veteran had episodes or acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. Thus, a higher disability rating under Diagnostic Code 5243 is unavailable.

In summary, the Board finds that a higher, 40 percent disability rating is warranted for the Veteran's lumbar spine disability.

2. Entitlement to an initial 40 percent disability rating for radiculopathy of the right lower extremity is granted.

3. Entitlement to an initial 40 percent disability rating for radiculopathy of the left lower extremity is granted.

As discussed in the Introduction, the issues of entitlement to initial disability ratings in excess of 20 percent for the Veteran's radiculopathy of the right and left lower extremities are before the Board pursuant to Chavis. These disabilities are both rated under Diagnostic Code 8520; thus, the Board will discuss them together.

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, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. � 4.124a.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. � 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. �� 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 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).

At the Veteran's June 2021 VA examination, he reported back pain that radiated down his hips, buttocks, and right leg, and numbness of the right leg and foot with prolonged sitting. On further evaluation, the VA examiner documented hypoactivity in the right knee and right ankle, as well as moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right lower extremity. The Veteran also endorsed the occasional use of a cane due to his radiculopathy of the right lower extremity.

At the Veteran's February 2022 VA examination, he exhibited hypoactivity in both ankles and decreased sensation to light touch in his lower leg/ankle and feet/toes bilaterally. The VA examiner also documented moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right and left lower extremities, and the Veteran again endorsed the regular use of a cane.

The Board finds that both the Veteran's radiculopathy of the right and left lower extremities more closely approximates moderately severe impairment throughout the appeal period. Both VA examination reports reflect diminished reflexes, and the most recent VA examination also reflects sensory disturbances, unsteady gait and poor balance requiring use of a cane due to these disabilities. The Board finds that this level of impairment is consistent with a moderately severe disability rating under Diagnostic Code 8520 for incomplete sciatic nerve paralysis within the above noted disability characterizations. 38 C.F.R. � 4.124a, Diagnostic Code 8520. Higher, 60 percent disability ratings are not warranted, as the evidence does not reflect muscle atrophy in either lower extremity, nor is there a severe grade of motor and reflex impairment, and there is no objective evidence of trophic changes. Again, the Board recognizes the Veteran has limitations with ambulation and requires ambulatory aids on a regular basis due to his radiculopathy of the right and left lower extremities. However, the Board finds that the 40 percent disability ratings awarded herein reasonably encompasses this level of impairment.

In summary, the Board finds that a higher, 40 percent initial disability ratings are warranted for the Veteran's radiculopathy of the right and left lower extremities.

REASONS FOR REMAND

4. Entitlement to a TDIU is remanded.

Entitlement to a TDIU has been added to this appeal pursuant to Rice. Remand is required for additional development regarding the Veteran's educational and occupational history and current employment status.

The matter is REMANDED for the following action:

Ask the Veteran to submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information.

Melanie J. Mann

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Bush

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.