Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative changes.
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Citation Nr: 1829425 Decision Date: 06/05/18 Archive Date: 06/27/18 DOCKET NO. 10-44 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative changes. 2. Entitlement to a higher rating for radiculopathy of the right lower extremity, secondary to service-connected lumbosacral strain with degenerative changes, rated as 10 percent disabling prior to June 28, 2012, and 20 percent from that date. 3. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity, secondary to service-connected lumbosacral strain with degenerative changes. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hughes, Counsel INTRODUCTION The Veteran served on active duty in the Navy from January 1975 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Oakland, California. In December 2016, the case was remanded to provide the Veteran with a hearing before a Veterans Law Judge. In March 2017, the Veteran testified before the undersigned in a Video Conference Hearing; a copy of the transcript is associated with the record. The case was remanded for additional development in August 2017. The additional development ordered in the Board remand has been completed and the claim has been re-certified to the Board. FINDINGS OF FACT 1. Throughout the period on appeal, Veteran's lumbar spine disability is shown to be manifested by forward flexion to 30 degrees or less when considering his complaints of pain and functional loss; ankylosis, incapacitating episodes (of bed rest prescribed by a physician), and associated neurological manifestations [other than the bilateral lower extremity radiculopathy and erectile dysfunction which are already service-connected] are not shown. 2. For the period of appeal prior to June 28, 2012, the Veteran's right lower extremity radiculopathy was manifested by no more than mild incomplete paralysis. 3. For the period of appeal from June 28, 2012, the Veteran's right lower extremity radiculopathy was manifested by no more than moderate incomplete paralysis. 4. For the period of appeal from April 10, 2012, the Veteran's left lower extremity radiculopathy was manifested by no more than mild incomplete paralysis. 5. Throughout the appeal period, the Veteran has either been employed or in receipt of a combined 100 percent rating; there is no evidence showing that he has been rendered unable to secure or follow a substantially gainful occupation as result of his service-connected lumbosacral strain with degenerative changes alone, referral for extra-schedular consideration is not warranted. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for orthopedic impairment due to lumbosacral strain with degenerative changes have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5242 (2017) 2. The criteria for a rating in excess of 10 percent disabling prior to June 28, 2012, and 20 percent from that date for right lower extremity radiculopathy, secondary to service-connected lumbosacral strain with degenerative changes, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Code 8520 (2017). 3. The criteria for a rating of 10 percent disabling (and no higher) from (the earlier effective date of) April 10, 2012, for left lower extremity radiculopathy, secondary to service-connected lumbosacral strain with degenerative changes, have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claims and decided entitlement based on the evidence. The Veteran has not 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). Duties to Notify and Assist With respect to the claims addressed herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). There has been substantial compliance with the Board's remand directives to decide the claim on appeal. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). Specifically, pursuant to the December 2016 Board remand, the Veteran testified at a Board hearing in March 2017, and, pursuant to the August 2017 Board remand, updated medical evidence was obtained and the Veteran was afforded a VA back examination in October 2017. When evaluating the severity of certain disabilities, including disabilities of the spine, which are rated in part based on the degree of limited motion in the affected joint, VA is generally required to consider whether the Veteran's disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that adequate range of motion test results include evaluating range of motion "for pain on both active and passive motion and in weight bearing and nonweight-bearing . . . ." Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Having reviewed the VA examination reports during the appeal period, it does not appear that the range of motion of Veteran's spine has been tested on both active and passive motion, in weight bearing and nonweight-bearing. Nevertheless, the failure to do so is harmless error because, throughout the appeal period, the Veteran has been granted a 40 percent disability rating for his lumbosacral strain with degenerative changes under 38 C.F.R. § 4.71a, Code 5242. This is the highest disability rating provided by the schedule for limited motion of the thoracolumbar spine. A higher rating requires ankylosis. See 38 C.F.R. § 4.71a, Codes 5235-5243. DeLuca does not apply to the analysis for rating disabilities beyond the highest schedular evaluation based on limited motion when a higher evaluation requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The purpose of testing range of motion in each of the ways described under 38 C.F.R. § 4.59 is to apply rating criteria which consider the extent of any limited motion in the relevant joint. Thus, the reasoning of Johnston applies when a Veteran is in receipt of the highest schedular rating based on limited motion and an examination fails to comply with Correia. It is clear from the examination reports and other evidence that the Veteran does not have ankylosis of the thoracolumbar spine, and there is no allegation or suggestion of such. For these reasons, the VA examination reports together with the other evidence is adequate to decide the Veteran's lumbar spine increased rating claim. In this regard, it is noted that VA may refrain from providing further assistance when there is no possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). Factual Background The Veteran's claim for an increased rating was received November 24, 2008. Throughout the claims period on appeal, a 40 percent rating has been in effect for the Veteran's lumbosacral strain with degenerative changes. See, eg., February 2009 Rating Decision - Codesheet. In addition, associated neurological manifestations of right lower extremity radiculopathy have been rated as 10 percent from December 8, 2010 to June 28, 2012 and 20 percent from that date and left lower extremity radiculopathy has been rated as 10 percent from July 12, 2012. On February 2009 VA spine examination, the Veteran's flexion was from 0 to 30 degrees limited by stiffness and pain, reduced to 0 to 15 degrees after 3 repetitions. The impression included "severe recurrent low back pain with minimal to mild weight bearing activity." He did not have radiation of pain to the lower extremities. There was no indication the Veteran presented with ankylosis or IVDS. In his October 2009 Notice of Disagreement (VA Form 21-4138, Statement in Support of Claim), the Veteran argued that his low back disability should be assigned an increased 60 percent rating based on incapacitating episodes under Code 5243 for IVDS. See also, January 2010 Statement in Support of Claim, November 2010 VA Form 9, Appeal to Board of Veterans Appeals (Substantive Appeal); February 2011 VA Form 1-646, Statement of Accredited Representative in Appealed Case; March 2017 Board Hearing Transcript, p. 4. A December 8, 2010 VA neurology note shows an assessment of suspected nerve root compression at S1 or L5 given the Veteran's "distribution of pain, numbness, and tingling, as well as prior imaging and" positive straight leg raise sign on examination. It was further noted that the Veteran's history and pain was "strongly suggestive" of right radiculopathy; however, this was difficult to localize in the absence of any sensory or motor signs. On June 2011 VA peripheral nerves examination, range of motion testing was flexion to 20 degrees with pain and fatigability and no loss of function with 3 repetitions. The assessment was lumbar degenerative disc disease with right sided radiculopathy and right extraforaminal L5-S1 nerve root. VA treatment records include an April 10, 2012 Emergency Department note which notes the Veteran's history of chronic low back pain with mild right L5 radiculopathy which was "now radiating down posterior left leg" (pain radiating down left leg and foot with left foot numbness). A June 28, 2012 VA treatment report includes an assessment of lower back pain radiating to the right leg, "signs of L5 root dysfunction with decreased reflexes and sensory deficits" and "clinically [the Veteran] has moderate L5 radiculopathy." By a November 2012 rating decision, service connection for right lower extremity radiculopathy, rated 10 percent was granted from December 8, 2010, the earliest date increased disability was shown. On April 2013 VA peripheral nerves examination, the diagnosis was bilateral lower extremity lumbar radiculopathy; described as incomplete paralysis of the sciatic nerve, moderate on the right and mild on the left. The Veteran reported the onset of right leg pain in 2010 which slowly worsened to include the left side, though to a lesser degree of intensity as compared to the right side and aggravated by prolonged standing or almost any weight bearing activity. Accordingly, by a May 2013 rating decision, service connection was granted for left lower extremity radiculopathy, rated 10 percent from July 12, 2012, the date of receipt of the Veteran's claim for service connection. In addition, the evaluation of right lower extremity radiculopathy was increased to 20 percent from April 12, 2013, the date of VA examination showing increased disability. A January 2014 rating decision, upon consideration of the June 28, 2012 VA treatment report showing a finding of "moderate L5 radiculopathy;" granted an increased 20 percent rating from the earlier effective date of June 28, 2012. In an April 2017 opinion, C. N. Bash, M.D., stated that the SMRs (service medical records) "un-mistakably shows IVDS" and the Veteran "needs daily bed rest." However, Dr. Bash does not identify any treatment records or laboratory studies where the Veteran is shown to have IVDS. On October 2017 VA back examination, forward flexion was from 0 to 20 degrees, the Veteran declined examination after repetitive use due to pain. He did not have IVDS of the thoracolumbar spine and there was no ankylosis of the spine. The Veteran had radiculopathy of the sciatic nerve, moderate on the right and mild on the left. Regarding bed rest, based on review of the record and the statement from Dr. Bash, the examiner indicated that "Chronic Back pain and sciatica do not require bed rest. Bed rest may be ordered for short periods for acute exacerbations. The American College of Physicians and the America Pain Society advise that patients with back pain remain active." VA and private treatment records during the appeal period show the Veteran's ongoing treatment for complaints of low back pain and bilateral lower extremity neurologic symptoms, such as radiation of pain, numbness and tingling. Legal Criteria and Analysis Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. Lumbar Spine As noted above, the present appeal arises from the Veteran's November 24, 2008 claim for increase. By a February 2009 rating decision, in accordance with the criteria set forth in the General Rating Formula, 38 C.F.R. § 4.71a, the RO assigned an increased 40 percent rating for his lumbosacral strain with degenerative changes under Code 5242 from November 24, 2008, the date of receipt of the Veteran's claim for increase. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Ratings under the General Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The disabilities of the spine that are rated under the General Formula include degenerative arthritis of the spine (Diagnostic Code 5242). Under that Code, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent requires unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, Note (2) (See also Plate V). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula, Note (5). Disability of the thoracolumbar and cervical spine segments are to be evaluated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, General Formula, Note (6). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 40 percent rating for 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 warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). As detailed above, the preponderance of the evidence is against a finding that the Veteran had IVDS at any time during the appeal. There is no indication in the Veteran's examination reports or treatment records that he has presented with ankylosis or IVDS of the thoracolumbar spine at any point during the period on appeal. Although Dr. Bash has stated that the Veteran has IVDS and requires daily bed rest, this assertion is not supported by the contemporaneous clinical evidence and Dr. Bash provides no support of his findings. Further, the record does not show and the Veteran does not claim bowel or bladder issues. As demonstrated above, the Veteran's service-connected lumbar spine disability has never been shown to result in ankylosis, which is required for an increased rating. Accordingly, entitlement to a higher disability rating for lumbosacral strain with degenerative changes is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Lower Extremity Radiculopathy The Veteran is service-connected for bilateral lower extremity radiculopathy under Code 8520, for paralysis of the sciatic nerve. The right lower extremity radiculopathy has been rated as 10 percent from December 8, 2010 to June 28, 2012 and 20 percent from that date. The left lower extremity radiculopathy has been rated as 10 percent from July 12, 2012. Under Code 8520, mild incomplete paralysis is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. After review of the record, the Board finds that a rating in excess of 10 percent from December 8, 2010 to June 28, 2012 and 20 percent from that date for right lower extremity radiculopathy is not warranted. As noted above, a December 8, 2010 VA neurology treatment report provides the initial evidence that the Veteran's complaints were "strongly suggestive" of right radiculopathy. In addition, the right radiculopathy was described as "mild" during April 2010 Emergency Department treatment. As shown by the records (and claimed by the Veteran), the initial finding of "moderate" right leg radiculopathy was initially noted during June 28, 2012 VA treatment. Subsequent clinical records show moderate right lower extremity radiculopathy during the remainder of the appeal period. See, e.g, April 2013 VA peripheral nerves examination report and October 2017 report of VA back examination. As such, the Board finds that a rating in excess of 10 percent from December 8, 2010 to June 28, 2012 is not warranted because the Veteran had no more than mild right lower extremity and in excess of 20 percent from June 28, 2012 is not warranted because his right lower extremity radiculopathy was described as no more than moderate. Moderately severe or greater incomplete paralysis so as to warrant a 40 percent or greater evaluation has not been shown at any time during the appeal period. The Veteran's left lower extremity radiculopathy has been rated as 10 percent from July 12, 2012. However, review of the record shows that the April 10, 2012 Emergency Department treatment report includes the initial finding of pain radiating down left leg and foot with left foot numbness. Accordingly, service connection for left lower extremity radiculopathy is warranted from the earlier date of April 10, 2012. Further, as the Veteran's left lower extremity radiculopathy has consistently been described as no more than mild (and lesser than his right lower extremity radiculopathy), the 10 percent rating currently in effect is warranted throughout the appeal period. Moderate or greater incomplete paralysis of the left sciatic nerve so as to warrant an increased 20 percent or greater rating is not shown at any time during the appeal period. See, e.g, April 2013 VA peripheral nerves examination report and October 2017 report of VA back examination. Accordingly, entitlement to an evaluation for right lower extremity radiculopathy greater than the currently assigned 10 percent from December 8, 2010 to June 28, 2012 and 20 percent from that date is denied. Entitlement to a 10 percent rating for left lower extremity radiculopathy from the earlier effective date of April 10, 2012 is granted; a rating in excess of 10 percent for left lower extremity radiculopathy is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU This appeal arises from the Veteran's November 24, 2008 claim for an increased rating of his service-connected low back disability. He contends that his low back disability renders him unemployable. The Veteran's service-connected disabilities are rated as a combined 100 percent disabling from June 28, 2012. He was employed full-time until July 31, 2013, when he retired. Although the Veteran has been evaluated at a combined 100 percent from June 28, 2012, the matter of TDIU is not moot because a TDIU based on a single service-connected disability alone may result in additional benefits (i.e., special monthly compensation, or SMC), even if a 100 percent combined schedular evaluation is in effect. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010) (A TDIU based on a single service-connected disability alone may result in additional benefits (i.e., special monthly compensation, or SMC), even if a 100 percent schedular evaluation is in effect.) Notably, however, unlike 38 C.F.R. § 4.16(a), when determining whether the Veteran has independently ratable and distinct disabilities for purposes of SMC, the question of whether such disabilities arose from a common etiology is not relevant. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). For these reasons, the matter of TDIU is limited to the question of whether the Veteran's lumbosacral strain with degenerative changes alone precludes employment. His lumbosacral strain with degenerative changes is rated as 40 percent disabling for the entire appeal period; the additional neurological ratings reveal that the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) were not met until June 28, 2012, as the Veteran's lumbar spine disability in combination is rated as 60 percent from that date. Even when the criteria under 38 C.F.R. § 4.16(a) were not met (prior to June 28, 2012), entitlement to a TDIU on an extraschedular basis may be referred for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected lumbar spine disability. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU may be assigned when it is found that the disabled person is unable to secure or follow a substantially gainful occupation. 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 (including 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. 38 C.F.R. § 4.16(a). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed.Cir.2013). The Court has held that TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran claims that he was able to remain employed because of "accommodations" made by his employer (hiring of an assistant to perform the physical aspects of his job, flexible work schedule, being allowed to rest at work and no disciplinary action during unproductive periods of the work day) or "sheltered" employment. It is the Veteran's contention that because his employer made accommodations for his back disability, it should be considered sheltered employment (without the "sheltered employment status" he would not be working). However, he also testified that it was his cardiologist who recommended accommodations at work to reduce stress on his heart (a non-service-connected disability). He voluntarily retired July 31, 2013. See, e.g, January 2010 Statement in Support of Claim, November 2010 Substantive Appeal, March 2017 Board Hearing Transcript, p. 15., September 2017 Statement in Support of Claim and attachment. In support of his claim, the Veteran submitted an April 2017 statement from Dr. Bash which includes the opinion that the Veteran "due to IVDS of his lumbar spine and/or his MDD, singly or combined, he would not have been able to secure or follow a substantial gainful employment requiring exertional and or non-exertional activity if not for the permanent and extraordinary accommodations provided to him by his employer." (emphasis in original). However, the preponderance of the evidence is against a finding that the Veteran's employment should be considered sheltered. He was an X-ray and MRI technician at a large, urban medical facility for many years. He worked for the same employer for 30 years. He completed four years of college as well as graduate studies in health care administration. He estimated that his highest gross earnings per month were in excess of $7,000. Ultimately, the Board finds that the Veteran performed his work satisfactorily for many years; aside from his characterization (and that of his representative and Dr. Bash), there is no reason to believe his employment was protected or sheltered such that it may be considered marginal. The Board concludes that the Veteran's work environment as an X-ray and MRI technician in a large, urban medical facility was not sheltered and his work was not marginal, and hence his work was substantially gainful for purposes of 38 C.F.R. § 4.16. On review, the Board acknowledges that the Veteran's service-connected lumbosacral strain with degenerative changes and his related neurological issues of the lower extremities impact his ability to work and perform work tasks, such as sitting for prolonged periods, standing for more than 10-15 minutes, lifting more than 2-5 pounds, bending, pushing, and walking. See, e.g., October 2017 VA back examination report. However, the combined 60 percent evaluation (and the earlier (lower) ratings) for this disability is intended to reflect such occupational impairment. See 38 C.F.R. § 4.10. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected lumbar spine disability alone precludes him from securing and following gainful occupation in a field appropriate for his educational background and work experience, specifically including sedentary administrative work in which he can take breaks from prolonged sitting and standing and which does not require lifting. Indeed, the evidence shows that during the relevant period on appeal, the Veteran was either employed (during which TDIU is not permissible), albeit with accommodations by his employer, or had retired. Notably, the Veteran has attributed his retirement to a combination of multiple physical and psychiatric disabilities, both service-connected and nonservice-connected. Specifically, review of the record shows the Veteran is treated for atherosclerotic heart disease and has undergone coronary artery bypass grafting. In addition, during his Board hearing, the Veteran recalled his cardiologist requested accommodations in part because of stress on his heart (the Veteran is not service-connected for a heart disability). Notably, although Dr. Bash found that the Veteran would be unable "to secure or follow a substantial gainful employment requiring exertional and or non-exertional activity" if not for the accommodations provided by his employer because his "poor gait" puts him at greater risk for falls, he needs daily bed rest and he has been prescribed centrally acting pain medications which causes inability to engage in a cerebral occupation due to inability to focus, concentrate and memorize, this opinion is conclusory and unsupported by the contemporaneous medical evidence. In contrast, after interview and examination of the Veteran and review of his medical records, including the statement from Dr. Bash, the October 2017 VA examiner found that the Veteran's "gait is slow but without trendlenberg or ataxia, no drop foot, [c]enter of gravity is maintained. Erect posture. Romberg negative." The examiner also found no IVDS requiring bed rest (and noted numerous sources in the medical field which "advise that patients with back pain remain active") and noted the Veteran's report of feeling "sleepy" with diminished ability to concentrate as a result of pain medication. Given this evidence and reports by the Veteran regarding the combined impact of his physical and psychiatric disabilities, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected lumbosacral strain with degenerative changes alone prevents him from securing and maintaining an occupation in which he has work experience and the educational background to perform. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For these reasons, the Board finds that the Veteran is not rendered unable to secure and follow a substantially gainful occupation by reason of his service-connected lumbosacral strain with degenerative changes (and related lower extremity neurological disability) alone. Referral for consideration of entitlement to a TDIU on an extraschedular basis is not warranted for that part of the appeal when the lumbosacral disability did not meet the schedular requirements. 38 C.F.R. § 4.16(b). ORDER Entitlement to an evaluation in excess of 40 percent for lumbosacral strain with degenerative changes, to include TDIU, is denied. Entitlement to a higher rating for radiculopathy of the right lower extremity, secondary to service-connected lumbosacral strain with degenerative changes, rated as 10 percent disabling prior to June 28, 2012, and 20 percent from that date is denied. Entitlement to a 10 percent rating for radiculopathy of the left lower extremity, secondary to service-connected lumbosacral strain with degenerative changes, but no higher, is granted from (the earlier effective date of) April 10, 2012, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs