Case A26040324

A. J. SPECTOR · 2026 · Case ID: A26040324

MIXED

Summary

The Veteran, who served from July 1989 to July 1992, appeals a proposed reduction in his disability rating for lumbar decompression and fusion with lumbosacral strain and challenges the denial of higher ratings for bilateral sciatic radiculopathy. The Board dismissed the appeal regarding the lumbar spine rating, finding no implemented decision to appeal. For the bilateral sciatic radiculopathy claims, the Board reviewed VA examinations from September 2020 and April 2021, along with the Veteran's testimony from an April 2025 hearing. While VA examinations noted moderate incomplete paralysis of the bilateral sciatic nerves and limitations in walking and stair climbing, the Board found these limitations were primarily attributed to the Veteran's service-connected lumbar and cervical spine conditions, which already received significant ratings. The Board concluded that the evidence did not support ratings higher than the 20 percent already assigned for the radiculopathy. The Veteran also appealed the denial of Total Disability based on Individual Unemployability (TDIU). Considering his service-connected lumbar spine, radiculopathy, knee, and ankle conditions, along with his prior employment as a carpenter and limitations in sitting, walking, and driving, the Board found that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Therefore, TDIU was granted.

Special Benefit

TDIU

Docket No.

210729-176032

Full Decision Text

Citation Nr: A26040324
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210729-176032
DATE: April 29, 2026

ORDER

The appeal of the proposed reduction of the evaluation for service-connected lumbar decompression and fusion with lumbosacral strain from 40 percent to 20 percent, is dismissed.

Entitlement to an initial disability rating higher than 20 percent for sciatic radiculopathy of the left lower extremity is denied.

Entitlement to an initial disability rating higher than 20 percent for sciatic radiculopathy of the right lower extremity is denied.

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

FINDINGS OF FACT

1. The May 2021 rating decision proposed to reduce the Veteran's disability rating for his lumbar stenosis status post lumbar decompression and fusion with lumbosacral strain from 40 percent to 20 percent; this was not an adjudicative determination by the Department of Veterans Affairs (VA).

2. The Veteran's radiculopathy of the left lower extremity is manifested by moderate incomplete paralysis of the sciatic nerve.

3. The Veteran's radiculopathy of the right lower extremity is manifest by moderate incomplete paralysis of the sciatic nerve.

4. The Veteran's service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment consistent with his education and employment history.

CONCLUSIONS OF LAW

1. The appeal of the proposed reduction of the evaluation for service-connected lumbar decompression and fusion with lumbosacral strain is dismissed as a matter of law. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.104.

2. The criteria for a disability rating higher than 20 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520.

3. The criteria for a disability rating higher than 20 percent for sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520.

4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1989 to July 1992.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ).

The Veteran elected the Board's hearing docket in his July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The Veteran appeared at a Board hearing on April 8, 2025; a transcript is of record.

Therefore, the Board may only consider the evidence of record at the time of the May 2021 supplemental claim rating decision, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302. If evidence was submitted either (1) during the period after the AOJ issued the May 2021 rating decision and prior to the April 2025 Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

A March 2026 Board decision
than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302, 20.801.

A March 2026 Board decision granted a 20 percent rating for sciatic radiculopathy of each lower extremity. A March 2026 rating decision implemented this grant and assigned an effective date of November 21, 2019. The issues of entitlement to a higher disability rating for radiculopathy of the bilateral lower extremities have been recharacterized to reflect these increases in the disability rating assigned.

The Board notes that the February 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability ("TDIU Application") identified the lower back and legs as the basis of the TDIU claim. The TDIU Application was received within one year of the September 2020 rating decision granting service connection for radiculopathy of bilateral lower extremities. Therefore, the TDIU Application is treated as a Supplemental Claim for the purposes of continuous pursuit, and the period on appeal for the radiculopathy and TDIU claims begins on November 21, 2019. Chisholm v. Collins, 38 Vet. App. 140 (2025).

Evaluation for service-connected lumbar decompression and fusion with lumbosacral strain is proposed to be decreased from 40 percent to 20 percent

The appeal of the proposed reduction of the evaluation for the Veteran's service-connected lumbar decompression and fusion with lumbosacral strain, from 40 to 20 percent, is dismissed as a matter of law.

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. §§ 7104; 7105; 38 C.F.R. § 20.104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed and any appeal for which is has no jurisdiction. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.202.

A May 2021 rating decision proposed to reduce the Veteran's evaluation for lumbar decompression and fusion with lumbosacral strain from 40 percent to 20 percent. In an accompanying notification letter, the Veteran was given notice of the proposal as required under 38 C.F.R. § 3.105(e). Then, in July 2021, the Veteran submitted a Notice of Disagreement in which he prematurely appealed the proposed reduction. At the time that the Veteran filed his Notice of Disagreement, the "decision" that he indicated he wished to appeal was only a proposal, and a rating reduction was not implemented at that time. Ultimately, the proposed rating reduction was never implemented as a May 2022 rating decision continued to assign a 40 percent disability rating. Therefore, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed.

1. Entitlement to an initial rating higher than 20 percent for sciatic radiculopathy of the left lower extremity

2. Entitlement to an initial rating higher than 20 percent for sciatic radiculopathy of the right lower extremity

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski,
a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 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 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 disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123.

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

VA's Adjudication Procedures Manual (M21-1) provides benchmarks for mild, moderate, moderately severe, and severe peripheral nerve conditions. Although 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. Healey v. McDonough, 33 Vet. App. 312 (2021); Overton v. Wilkie, 30 Vet.
es, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The Board finds these definitions to be instructive. Per the M21-1, mild is described as the lowest level of evaluation for each nerve, and is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment. It is to be assigned when sensory deficits are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis.

Moderate is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment, in which symptoms will likely be described by the claimants and graded as significantly disabling, and in which a larger area in the nerve distribution may be affected. Other symptom combinations that may fall into the moderate category include the following: 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 hyperactive reflexes (with or without sensory impairment) graded as medically moderate. M21-1, V.iii.12.A.2.c.

A "moderately severe" evaluation level includes motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability and may include atrophy.

To be described as "severe," it would be expected that there is 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, and marked muscular atrophy is expected in cases involving the sciatic nerve. Id.

Analysis

The September 2020 VA examination noted mild constant pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremities as well as moderate intermittent pain in the bilateral lower extremities. The Veteran had normal strength and no muscle atrophy. His deep tendon reflexes were hypoactive. He had a normal sensory examination without trophic changes. The examiner did note an antalgic gait due to bilateral leg pain and found mild incomplete paralysis of the bilateral sciatic nerves. The functional impact was described as an inability to run due to back and bilateral leg pain such that he would not qualify for jobs that require this such as police officer or firefighter, as well as an inability to lift objects above 50 pounds to shoulder level. The examiner also found that the Veteran would not be able to perform any work activities that require going up and down the steps and ladder. All of these limitations were due to both back and leg pain, not due solely to radicular symptoms.

The Board recognizes that the September 2020 VA examination states that the Veteran's treatment for his radiculopathy includes low back injections, etodolac, gabapentin, and baclofen. When the rating criteria do not contemplate the ameliorative effects of medication, such effects must be discounted when evaluating the severity of a service-connected condition. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). However, in this case, the April 2021 VA examination does not state that the Veteran takes medication for this condition, and the January 2021 VA active medication list does not include the medications noted in the September 2020 examination. The private treatment records from after September 2020 do not mention these medications. Therefore, the Board finds that the April 2021 VA examination reflects the severity of the Veteran's radiculopathy without the ameliorative effects of the medication noted in the September 2020 examination report.

The April 2021 VA examination notes moderate intermittent pain, paresthesias and/or dysesthesias, and numbness of the bilateral lower extremities. The Veteran's muscle strength was normal without any muscle atrophy. His deep tendon reflexes were also normal, as was his sensory examination. He had no trophic changes. The examiner noted an abnormal gait that he attributed to cervical/back issues
September 2020 examination. The private treatment records from after September 2020 do not mention these medications. Therefore, the Board finds that the April 2021 VA examination reflects the severity of the Veteran's radiculopathy without the ameliorative effects of the medication noted in the September 2020 examination report.

The April 2021 VA examination notes moderate intermittent pain, paresthesias and/or dysesthesias, and numbness of the bilateral lower extremities. The Veteran's muscle strength was normal without any muscle atrophy. His deep tendon reflexes were also normal, as was his sensory examination. He had no trophic changes. The examiner noted an abnormal gait that he attributed to cervical/back issues. The examiner found moderate incomplete paralysis of the bilateral sciatic nerve and described the functional impact as causing great difficulty when changing positions from seated to standing as well as interference with gait, and an impact on his activities of daily living.

At the April 2025 hearing, the Veteran testified that his radiculopathy makes it "about impossible to walk," explaining that he can walk about 50 feet with a walker, but after that it hurts to go 10 feet with the walker. He explained that his range had dropped, and that previously he could walk 100 to 150 feet with a walker. He testified that he goes up and down stairs either scooting on his backside or crawling on his hands and knees because he does not trust his legs and is afraid of falling down the stairs.

The Board finds that the severity of the Veteran's bilateral sciatic radiculopathy is best described as moderate, not moderately severe. The Veteran's symptoms are consistently described by the VA examiners as no more than moderate. Testing reflects normal strength and normal sensory examination. Deep tendon reflexes were hypoactive in the September 2020 examination, but were normal in April 2021, which means that his reflexes are not consistently impaired. There is no muscle atrophy.

The Board recognizes that the Veteran has reported an inability to walk more than 60 feet or climb or descend stairs upright, which he attributes to his radiculopathy. However, the September 2020 examination report attributes his limitations to his back as well as bilateral leg pain. The April 2021 VA examination attributes his abnormal gait to cervical/back issues, as opposed to radiculopathy. Therefore, the most competent evidence of record demonstrates that the limitations in walking are attributed at least in part to his service-connected lumbar stenosis, which has been assigned a 40 percent disability rating, as well as the service-connected intervertebral disc disease of the cervical spine, which has been assigned a 20 percent rating. The fact that the objective measurements of the Veteran's radiculopathy are normal with the exception of an inconsistent finding of hypoactivity is incongruous with a consistent inability to walk more than sixty feet with the assistance of a walker or climb or descend stairs in an upright position. Therefore, the most probative evidence of record supports a finding that the primary causes of the Veteran's limitations of walking and using stairs are his lumbar spine disability, which has been assigned a 40 percent rating reflecting a severe level of disability, and his cervical spine disability, which has been assigned a 20 percent rating. It would be impermissible pyramiding to assign a higher disability rating for radiculopathy based upon limitations in walking when these limitations were also contemplated as part of the disability ratings assigned for lumbar and cervical disabilities. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994).

Considering the findings of the radiculopathy objective testing and the severity of the Veteran's lumbar spine disability, the Board finds that the level of limitation reflected by the motor and/or reflex impairment attributed to the sciatic radiculopathy, as opposed to the lumbar or cervical spine disabilities, is best described as a moderate level of impairment, rather than a high level of limitation. This finding is consistent with the fact that the April 2021 VA examiner found moderate incomplete paralysis of the bilateral sciatic nerves, that both examination reports described the Veteran's symptoms as no more than moderate, and that the record consistently reflects no muscle atrophy. This moderate finding represents some impairment of the Veteran's gait caused by his sciatic radiculopathy.

Accordingly, the evidence is persuasively against assigning a disability rating higher than 20 percent for sciatic radiculopathy of either lower extremity.

3. Entitlement to a TDIU

The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment throughout the period on appeal.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in
incomplete paralysis of the bilateral sciatic nerves, that both examination reports described the Veteran's symptoms as no more than moderate, and that the record consistently reflects no muscle atrophy. This moderate finding represents some impairment of the Veteran's gait caused by his sciatic radiculopathy.

Accordingly, the evidence is persuasively against assigning a disability rating higher than 20 percent for sciatic radiculopathy of either lower extremity.

3. Entitlement to a TDIU

The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment throughout the period on appeal.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Substantially gainful employment contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

The central inquiry is "whether service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5?Vet. App.?524, 529 (1993). The level of education, special training, and previous work experience may be considered as part of a TDIU claim. Age or impairment caused by nonservice-connected disabilities may not be considered when determining whether such a total disability rating is warranted. See 38?C.F.R. §§?3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The Veteran is service-connected for lumbar stenosis status post lumbar decompression and fusion with lumbosacral strain, rated as 40 percent disabling except for the period from February 25, 2020, to March 31, 2020, when it was rated as 100 percent disabling due to convalescence pursuant to 38 C.F.R. § 4.30; unspecified depressive disorder rated as 30 percent disabling; migraine headaches rated as 30 percent disabling from October 21, 2022; radiculopathy of the right lower extremity rated as 20 percent disabling; radiculopathy of the left lower extremity rated as 20 percent disabling; intervertebral disc disease of the cervical spine rated as 20 percent disabling from October 12, 2020; radiculopathy of the left upper extremity rated as 20 percent disabling from October 12, 2020; radiculopathy of the right upper extremity rated as 20 percent disabling from October 12, 2020; right ankle lateral collateral ligament sprain rated as 10 percent disabling; right knee strain rated as 10 percent disabling; left knee chondromalacia and strain rated as 10 percent disabling; iliac crest bone graft rated as noncompensable; posterior trunk surgical scars rated as noncompensable; and surgical scar of the neck rated as noncompensable. The combined disability rating was 80 percent from November 21, 2019, to February 24
0; radiculopathy of the left upper extremity rated as 20 percent disabling from October 12, 2020; radiculopathy of the right upper extremity rated as 20 percent disabling from October 12, 2020; right ankle lateral collateral ligament sprain rated as 10 percent disabling; right knee strain rated as 10 percent disabling; left knee chondromalacia and strain rated as 10 percent disabling; iliac crest bone graft rated as noncompensable; posterior trunk surgical scars rated as noncompensable; and surgical scar of the neck rated as noncompensable. The combined disability rating was 80 percent from November 21, 2019, to February 24, 2020; 100 percent from February 25, 2020, to March 31, 2020; 80 percent from April 1, 2020, to October 11, 2020; 90 percent from October 12, 2020, to April 15, 2023, and 100 percent from April 16, 2023.

The Veteran's February 2021 TDIU Application states that he last worked on October 4, 2019, and that he worked as a carpenter from May 2015 to October 2020. The Veteran reported having a high school education. The March 2021 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, corroborated that the date he last worked was October 4, 2019, and explained that the Veteran was not terminated, but that his doctor had him stop working for his health. The Veteran's former employer explained that the Veteran was limited to little or no lifting, no ladders or scaffold work, and nothing requiring physical exertion. The former employer wrote that there was no way for the Veteran to safely continue to work.

September 2020 VA examinations as to the ankles, knees, back, and radiculopathy of the lower extremities found that he could no longer run, lift, push, or pull objects above 50 pounds to shoulder level, or go up and down steps and ladders due to these disabilities. An April 2021 individual unemployable statement by a VA examiner found that the Veteran would be able to perform "light work," which was defined as exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force frequently and/or a negligible amount of force constantly to move objects. However, the April 2021 back examination found that the Veteran has difficulty with changing positions, walking, standing or sitting for extended periods of time.

The Veteran is in receipt of disability benefits from the Social Security Administration (SSA). In a January 2021 decision, the SSA found that the Veteran has not engaged in substantially gainful activity since October 25, 2019, based upon the Veteran's lumbar spine, carpal tunnel, neuropathy, and depressive disorder. The SSA found that the Veteran has the residual functional capacity to perform sedentary work except that he can occasionally climb ramps or stairs but can never climb ladders, ropes or scaffolds; can occasionally balance, stoop, kneel, or crouch, but can never crawl; can occasionally perform overhead reaching; can frequently perform handling or fingering; can have no exposure to hazards of unprotected heights or dangerous moving machinery; cannot perform any commercial driving; can perform simple, routine tasks and make simple work-related decisions; and is limited to low stress jobs with only occasional decision making required and only occasional changes in the work setting or duties. SSA found that the Veteran is unable to perform his past relevant work, and that, considering his age, education, work experience, and residual function, no jobs exist in the national capacity that the Veteran can perform. The finding related to whether jobs exist that the Veteran can perform has limited probative value in this appeal because it considers the Veteran's age, which the Board may not consider.

A July 2020 residual functional capacity examination by the SSA found that the Veteran has the ability to occasionally lift/carry 20 pounds, frequently lift/carry 10 pounds, stand and/or walk for 4 hours, and sit with normal breaks for about 6 hours in an 8 hour workday. The examiner found that the Veteran would be limited to occasional pushing or pulling in the bilateral lower extremities to use foot controls, and occasional pushing and pulling in the bilateral upper extremities to use hand controls. The Veteran would be limited to occasionally climbing ramps/stairs, balancing, stooping, kneeling, crouching, and crawling, and never climbing ladders/ropes/scaffolds. The examiner found that the Veteran would be limited to occasional reaching overhead bilaterally and frequent handling/fingering.

It is clear from the record that the
20 pounds, frequently lift/carry 10 pounds, stand and/or walk for 4 hours, and sit with normal breaks for about 6 hours in an 8 hour workday. The examiner found that the Veteran would be limited to occasional pushing or pulling in the bilateral lower extremities to use foot controls, and occasional pushing and pulling in the bilateral upper extremities to use hand controls. The Veteran would be limited to occasionally climbing ramps/stairs, balancing, stooping, kneeling, crouching, and crawling, and never climbing ladders/ropes/scaffolds. The examiner found that the Veteran would be limited to occasional reaching overhead bilaterally and frequent handling/fingering.

It is clear from the record that the physical limitations caused by the Veteran's service-connected back, radiculopathy of the lower extremities, knees, and ankle prevent him from performing his previous work as a carpenter, as well as other physically demanding work, throughout the period on appeal. The question is whether the Veteran is capable of performing work that is less physically demanding, such as work performed over the telephone, or data entry, largely while seated. The Board recognizes that the Veteran does not have any training or experience in this area, and any such work would need to be at an entry level.

Although the April 2021 statement regarding the Veteran's employability found that the Veteran is able to perform light work, and the July 2020 SSA residual functional capacity examination found that the Veteran has the ability to stand and/or walk for 4 hours and sit with normal breaks for about 6 hours in an 8-hour workday, the Board cannot overlook the finding in the April 2021 back examination that the Veteran has difficulty with changing positions, walking, standing, or sitting for extended periods of time. In the April 2025 hearing, the Veteran testified that he cannot sit for more than 5 to 10 minutes, and that driving a car to perform local errands causes so much back pain that he needs to lay down afterwards and normally stays in bed for most of the next day. Resolving doubt in the Veteran's favor, the Board finds that the evidence is at least in approximate balance that he cannot sit for an extended period and has difficulty with shifting positions to accommodate his back pain. Moreover, the limitations surrounding the Veteran's ability to drive combined with extreme limitations regarding his ability to walk indicate that this work must be performed from the Veteran's home, as typical daily commuting is outside of the Veteran's capabilities. It is unclear to the Board what work the Veteran could perform that would accommodate his limitations. This finding is consistent with private treatment records that found that the Veteran had poor work ability in November 2019 and January 2020.

Once the Veteran's radiculopathy of the bilateral upper extremities and cervical spine were service-connected effective October 12, 2020, the Veteran's relevant limitations increased. A July 2020 VA treatment note indicates that the Veteran tended to drop objects. A May 2021 VA examination as to the cervical spine noted that the Veteran had difficulty with driving, writing, holding things, and raising his arms above his shoulders. A January 2022 VA treatment note states that the Veteran's ability to complete basic household tasks such as cleaning and doing laundry had been impacted by his pain and lack of energy. These limitations emphasize the Veteran's need for remote work that would not require significant driving as part of its commute.

The Board finds that the Veteran's service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment consistent with his education and occupational history throughout the period on appeal. Entitlement to a TDIU is granted.

A. J. Spector

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Budd, 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.

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