SCIATICA OF THE LEFT LOWER EXTREMITY

BRADLEY W. HENNINGS · 2018 · Case ID: 1812440

MIXED

Summary

The veteran, who served from July 1996 to April 2000, appeals the denial of increased ratings for left lower extremity radiculopathy, lumbar disc disease with spinal stenosis, and right lower extremity radiculopathy. He also appeals the denial of an increased rating for bowel dysfunction and entitlement to Total Disability based on Individual Unemployability (TDIU). The Board granted entitlement to TDIU from December 15, 2008, finding that the veteran's service-connected disabilities preclude him from substantially gainful employment, considering his training and work experience as a truck driver and heavy equipment operator. The Board also granted a 40 percent rating for right lower extremity radiculopathy, finding moderately severe incomplete paralysis. However, the Board denied increased ratings for left lower extremity radiculopathy and lumbar disc disease, determining the criteria for higher ratings were not met. The claim for increased rating for bowel dysfunction was remanded for a new VA examination to determine the current severity of the disability. The Board noted that while the veteran's service-connected disabilities are significant, they do not meet the criteria for ratings higher than those currently assigned for the left lower extremity radiculopathy and lumbar disc disease.

Rationale

Criteria for 80% rating not met (complete paralysis); Evidence does not show severe incomplete paralysis with marked muscular atrophy; Preponderance of evidence against claim for higher rating

Special Benefit

TDIU

Diagnostic Code

8520

Docket No.

14-32 502

Full Decision Text

Citation Nr: 1812440
Decision Date: 02/28/18 Archive Date: 03/08/18

DOCKET NO. 14-32 502 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska

THE ISSUES

1. Entitlement to a rating in excess of 60 percent for left lower extremity radiculopathy.

2. Entitlement to a rating in excess of 40 percent for lumbar disc disease with spinal stenosis, status post bilateral hemi-laminectomy and discectomy at L5-S1.

3. Entitlement to a rating in excess of 30 percent for bowel dysfunction.

4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).

5. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL

Appellant and his wife

ATTORNEY FOR THE BOARD

Catherine Cykowski, Counsel

INTRODUCTION

The Veteran had active duty service from July 1996 to April 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska.

In August 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.

The issue of entitlement to an increased rating for bowel dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. Sciatica of the left lower extremity is manifested by severe symptoms with muscle atrophy and without objective evidence of foot dangling and dropping, no possible active movement of muscles below the knee, or weakened flexion of the knee.

2. During the appeal period, lumbar disc disease with spinal stenosis, status post bilateral hemi-laminectomy and discectomy at L5-S1, has been manifested with flexion to 40 degrees at worst with consideration of functional loss and without unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes having a total duration of at least four weeks during any 12-month period.

3. The Veteran's service-connected disabilities preclude him from securing and maintaining gainful employment.

4. The right lower extremity sciatici symptoms approximate moderately severe incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 60 percent for sciatica of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2017).

2. The criteria for a disability rating in excess of 40 percent for lumbar disc disease with spinal stenosis, status post bilateral hemi-laminectomy and discectomy at L5-S1 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R.
§§ 3.159, 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71(a), Diagnostic Code (DC) 5242 (2017).

3. The criteria are met for a TDIU from December 15, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16 (2017).

4. The criteria for a 40 percent rating for sciatica of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability Ratings

Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically
.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16 (2017).

4. The criteria for a 40 percent rating for sciatica of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.123, 4.124a, Diagnostic Code 8520 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability Ratings

Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor.
38 C.F.R. § 4.3.

In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1
icits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

Rating Criteria for Lumbar Spine Disability

The Veteran's lumbar spine disability is rated according to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is awarded for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

There are several notes following the General Rating Formula criteria, which provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. 38 C.F.R. § 4.71a.

The Formula for Rating Intervertebral Disc Syndrome based upon Incapacitating Episodes provides that a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assignable with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assignable with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

A December 2009 rating decision granted service connection for lumbar disc disease with spinal stenosis. A 20 percent rating was assigned from July 2007. A 100 percent rating was assigned from March 2009 based on surgical treatment requiring convalescence. A 20 percent rating was assigned from May
of at least 6 weeks during the past 12 months. For purposes of evaluations 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

The Veteran had a VA examination in January 2014. The examination noted a diagnosis of degenerative disc disease and spinal stenosis of the lumbar spine. The Veteran reported that his condition had remained about the same since the May 2012 VA examination. He continued to have low back pain and bilateral lower extremity pain, left worse than right. The Veteran reported that he used a cane to ambulate because his legs felt weak. He also reported painful limited range of motion. The examination indicated that the Veteran did not have flare-ups that impacted the function of the thoracolumbar spine.

On physical examination, the Veteran had forward flexion to 45 degrees, with objective evidence of painful motion at 45 degrees. The Veteran had extension to 20 degrees, with evidence of painful motion at 20 degrees. He had right and left lateral flexion to 30 degrees and right and left rotation to 30 degrees. There was no objective evidence of pain with lateral rotation and lateral flexion. The Veteran was able to perform repetitive use testing with 3 repetitions. He had additional limitation of motion following repetitive testing. The examiner noted that his functional impairment of the lumbar spine included less movement than normal, pain on movement, and interference with sitting, standing, and/ or weight-bearing. There was tenderness to palpation of the lumbar area. The Veteran had muscle spasms of the thoracolumbar spine that did not result in abnormal gait or contour. There were no incapacitating episodes of intervertebral syndrome in the past 12 months.
Upon VA examination in February 2015, the Veteran reported back pain with radiculopathy. The Veteran reported that he could not sit for more than 20 minutes at a time. Aggravating factors included sexual intercourse, bending over, getting in and out of bed, walking around malls, and sitting for 20-30 minutes at a time. The Veteran reported trouble bending and limitation of motion of his back in all directions.

On examination, the Veteran had forward flexion to 45 degrees and extension to 30 degrees. He had right and left lateral flexion to 25 degrees and right and left lateral rotation to 30 degrees. There was additional loss of motion with repetition. On repetition, the Veteran lost 5 degrees of forward flexion, 10 degrees of extension, and 5 degrees of right and left lateral flexion. The examination indicated that pain, weakness, and fatigability limited the Veteran's functional ability with repeated use over time. The examination was not conducted during a flare-up. There were no incapacitating episodes of intervertebral disc syndrome.

The Board finds that a rating in excess of 40 percent is not warranted for lumbar disc disease with spinal stenosis. The criteria for the next higher 50 percent rating under the General Rating Formula have not been met, as the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine. A rating in excess of 40 percent is also not warranted based upon incapacitating episodes, as the evidence does not show that the Veteran has had incapacitating episodes of intervertebral disc syndrome having a total duration of 6 weeks during a 12-month period. See 38 C.F.R. § 4.71(a), DC 5243.

Further, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension such that it results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note 5. The Veteran has not had any of these symptoms. Therefore, his symptoms have not more closely approximated unfavorable ankylosis of the entire thoracolumbar spine. Id.; see also Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)).

The rating criteria further provide that neurologic abnormalities are to be evaluated separately under the appropriate diagnostic code. Service connection has been granted for left and right lower extremity radiculopathy and bowel impairment associated with the Veteran's lumbar spine disability, and separate evaluations are assigned. The evidence does not show any other neurological manifestations of the Veteran's lumbar spine disability which warrant separate ratings.

Lower Extremity Radiculopathy

A December 2009 rating decision granted service connection for radiculopathy of the left and right lower extremities and assigned10 percent ratings for each lower extremity. An April 2011 rating decision assigned separate 20 percent ratings from November 2010. A December 2012 rating decision granted a 60 percent rating for left lower extremity sciatica. The Veteran did not appeal the December 2012 rating decision. In May 2013, the Veteran submitted a claim for TDIU, which was also construed as a claim for an increased rating for his service-connected radiculopathy. A May 2014 rating decision continued the 60 percent rating for left lower extremity radiculopathy and 20 percent rating for right lower extremity radiculopathy.

Paralysis of the sciatic nerve is rated according to Diagnostic Code 8520. A 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is assignable for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. A maximum rating of 80 percent is warranted for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017).

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124.

In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether
for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124.

In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, VA should consider the applicability of the radicular group ratings. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note.

The Veteran had a VA examination in May 2012. He reported constant pain of both legs, left worse than right, with left leg and foot weakness and numbness. He reported that he used a cane to ambulate, as his legs felt weak and he had difficulty sitting for more than 10 minutes, difficulty walking more than 100 feet at a time. He reported that he was unable to obtain gainful employment due to the inability to do much physically.

Physical examination showed decreased muscle strength of the hips, knees, and ankles. Muscle atrophy of the left calf and left quadriceps was noted. Reflexes in both knees were normal. The Veteran had absent reflexes of his right ankle and hypoactive reflexes of his left ankle. There was decreased sensation of the right lower extremity. Sensation of the left lower extremity was absent in the thigh, knee, lower leg, ankles, and toes. The Veteran reported constant moderate pain of the right lower extremity and severe constant pain of the left lower extremity. The signs and symptoms of radiculopathy included reduced reflexes and sensation on the left as described. The examiner described the right lower extremity radiculopathy as mild and the left lower extremity radiculopathy as severe.

A report of VA examination dated in March 2015 shows that the Veteran reported numbness in his lower extremities for years. He reported that the anterior portion of the left thigh was numb all the time, and he had shooting pain on the medial and posterior portion of his left leg. The shooting pain happened two times a week. Muscle strength testing showed 4/5 knee extension, 4/5 ankle plantar flexion, and 4/5 ankle dorsiflexion of both lower extremities. The right and left knee and ankle reflexes were hypoactive. There was decreased sensation of the upper anterior thighs, the lower leg and ankle, and feet and toes. There were no trophic changes attributable to peripheral neuropathy. The Veteran had a normal gait. He reported that he constantly used a cane. Radicular signs and symptoms included moderate pain and numbness of the lower extremities. An EMG showed bilateral S1 radiculopathy.

At the Board hearing, the Veteran testified that he has the same type of pain in his right lower extremity, but the pain is not as severe as the pain in his left leg.

The Board finds that a rating in excess of 60 percent is not warranted for radiculopathy of the left lower extremity, as the evidence does not show complete paralysis of the sciatic nerve, as manifested by a dangling and dropping of the foot and no active movement possible of muscles below the knee or flexion of the knee weakened or (very rarely) lost. The most recent VA examination report shows that the Veteran has 4/5 knee extension, 4/5 ankle plantar flexion, and 4/5 ankle dorsiflexion of both lower extremities. Accordingly, the requirements for the assignment of an 80 percent rating under Diagnostic Code 8520 for left lower extremity radiculopathy are not met.

The Board finds that a 40 percent rating, but no higher, is warranted for right lower extremity radiculopathy. The right lower extremity symptoms reported in 2015 included moderate pain and numbness. Although the examination reflects findings of moderate symptoms, the Veteran's testimony reflect more
the knee weakened or (very rarely) lost. The most recent VA examination report shows that the Veteran has 4/5 knee extension, 4/5 ankle plantar flexion, and 4/5 ankle dorsiflexion of both lower extremities. Accordingly, the requirements for the assignment of an 80 percent rating under Diagnostic Code 8520 for left lower extremity radiculopathy are not met.

The Board finds that a 40 percent rating, but no higher, is warranted for right lower extremity radiculopathy. The right lower extremity symptoms reported in 2015 included moderate pain and numbness. Although the examination reflects findings of moderate symptoms, the Veteran's testimony reflect more severe symptoms. The Veteran has indicated that the pain in his right leg is similar to the right leg, but not quite as severe. Resolving all doubt in the Veteran's favor, the Board finds that a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. The Board finds that the requirements for a 60 percent rating are not met because the evidence does not show severe incomplete paralysis with marked muscle atrophy.

In sum, the preponderance of the evidence is against the claims for a higher rating in excess of 60 percent for left lower extremity radiculopathy. A 40 percent rating is warranted for right lower extremity radiculopathy. In reaching this determination, the Board has considered the benefit of the doubt rule. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991).

TDIU

A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Id.

Service connection is in effect for left lower extremity radiculopathy, rated as 60 percent disabling; lumbar disc disease, rated as 40 percent disabling; bowel dysfunction, rated as 30 percent disabling; right lower extremity radiculopathy, rated as 40 percent disabling; erectile dysfunction, rated as non-compensable; and bladder dysfunction, rated as non-compensable. The schedular requirements for TDIU have been met since November 9, 2010, the date on which the Veteran had a combined rating of at least 60 percent based on service-connected disabilities sharing a common etiology.

The question that remains, then, is whether the Veteran's service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

A request for TDIU was received on May 2, 2013. The Veteran reported that he last worked full-time in December 2008. He reported that he had occupational training as an explosive technician, commercial truck driver, and heavy equipment operator.

A May 2012 VA examination noted that the Veteran's lumbar spine disability impacted his ability to work. He reported that he could not sit or stand for more than 10 minutes; could not lift anything over 15 pounds; and had difficulty driving and traveling due to sensory incontinence.

An April 2014 letter from the Veteran's former employer reflects that he last worked in January 2008.

A VA examination report dated in January 2014 shows that the Veteran reported that he could no longer
, 2013. The Veteran reported that he last worked full-time in December 2008. He reported that he had occupational training as an explosive technician, commercial truck driver, and heavy equipment operator.

An April 2014 letter from the Veteran's former employer reflects that he last worked in January 2008.

A VA examination report dated in January 2014 shows that the Veteran reported that he could no longer work in occupations with physical demands. The examiner opined that the severity of the Veteran's service-connected disabilities would not prevent him from obtaining or maintaining sedentary employment.

At the Board hearing, the Veteran testified that he has worked as a truck driver and heavy equipment operator. He testified that he cannot meet the criteria for a commercial driver's license anymore. The Veteran's wife testified that the Veteran's disabilities and his medications prevent him from doing the kind of work that he used to do. The Veteran and his wife indicated that he had a transportation company but is no longer able to perform that type of work.

The Board finds that the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment in light of his training and work experience. The Veteran has prior employment experience as a truck driver and heavy equipment operator. The record thus reflects that none of his work experience is in sedentary jobs and there is no indication that he would be qualified due to his education and experience for such. In addition, the Veteran indicated that his medications affect his decision-making abilities to the extent that he is unable to perform sedentary work. Given the multiple submissions of new and material evidence regarding his back disability under 38 C.F.R. § 3.156(b) over the course of the appeal, the Board finds that the Veteran's claim has been pending since 2007. However, he indicated he last worked full-time in December 2008. That is the appropriate date to which a TDIU rating should be granted, either under 4.16(a) or (b).

The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

ORDER

A rating in excess of 60 percent for left lower extremity radiculopathy is denied.

A rating in excess of 40 percent for lumbar disc disease with spinal stenosis, status post bilateral hemi-laminectomy and discectomy at L5-S1 is denied.

A TDIU is granted from December 15, 2008, subject to regulations governing the payment of monetary benefits.

A 40 percent rating is granted for right lower extremity radiculopathy, subject to regulations governing the payment of monetary benefits.

REMAND

Increased Rating for Bowel Dysfunction

Diagnostic Code 7332 provides a noncompensable rating for healed rectum and anus or slight impairment of sphincter control without leakage. A 30 percent rating is assigned for occasional involuntary bowel movements or impairment of sphincter control necessitating the wearing of a pad. A 60 percent evaluation is warranted for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating is warranted if there is complete loss of sphincter control.

The Veteran had a VA examination in January 2014. The examination noted impairment of rectal sphincter control, with leakage which necessitated wearing a pad. At his hearing, the Veteran testified that his symptoms are worse than described by the examiner. The claim is being remanded to schedule the Veteran for an examination to determine the current severity of the service-connected bowel dysfunction. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous).

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the severity of bowel dysfunction. The examiner must provide complete findings necessary to rate the Veteran's disability under Diagnostic Code 7332.

2. Then, readjudicate claim on appeal. If the benefit sought on appeal remains denied, the
testified that his symptoms are worse than described by the examiner. The claim is being remanded to schedule the Veteran for an examination to determine the current severity of the service-connected bowel dysfunction. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous).

Accordingly, the case is REMANDED for the following action:

2. Then, readjudicate claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative will be issued an appropriate supplemental statement of the case and afforded the opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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