Citation Nr: 0811063	
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  02-10 887A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New 
Jersey


THE ISSUES

1. Entitlement to an initial rating in excess of 60 percent 
for degenerative disc disease (DDD) of the lumbar spine.

2. Entitlement to a total disability evaluation for 
compensation purposes based on individual unemployability 
(TDIU). 

REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARINGS ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

J. Fussell, Counsel

INTRODUCTION

The veteran had active service from November 1959 to June 
1960.  

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) from decisions of January 2002 and July 2004 of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Newark, New Jersey.  

Historically, a January 2002 rating decision granted service 
connection for lumbar DDD and assigned an initial 20 percent 
evaluation, effective December 30, 1999.  Subsequently, an 
October 2003 rating decision increased the evaluation to 60 
percent effective December 30, 1999, under the old rating 
criteria (which have been revised during this appeal).  A 
July 2004 rating decision denied entitlement to a TDIU 
rating.  

The Board remanded this case in September 2006 to afford the 
veteran the opportunity to testify at a hearing at the RO 
before the BVA.  That hearing was conducted later in 
September 2006.  

A February 2007 Board decision denied service connection for 
a left shoulder disorder and for sleep apnea and also denied 
entitlement to an initial rating in excess of 10 percent for 
radiculopathy of the right lower extremity and to an initial 
rating in excess of 10 percent for radiculopathy of the left 
lower extremity.  That decision also granted an increase from 
a noncompensable rating for residuals of stress fracture of 
right heel to a 10 percent disability rating.  The issues of 
entitlement to an initial rating in excess of 60 percent for 
DDD of the lumbar spine and to TDIU rating were remanded.  
Those issues have now been returned for appellate 
consideration.  

A March 2007 rating decision effectuated the grant of a 10 
percent disability rating for residuals of stress fracture of 
right heel, effective December 30, 1999 (date of receipt of 
the veteran's original postservice VA claim), which resulted 
in an increase in the combined disability evaluation from 60 
percent to 70 percent.  

Lastly, based on the veteran's testimony, it appears he 
intends to claim or may otherwise be entitled to special 
monthly compensation based on the regular aid and attendance 
of another.  This matter is referred to the RO for 
consideration.  


FINDINGS OF FACT

1. The veteran's service-connected lumbar spine disability 
results in severe degenerative disc disease and limitation of 
motion, but is not productive of unfavorable ankylosis of the 
entire spine.  

2. The veteran's service connection disabilities are DDD of 
the lumbar spine, rated 60 percent disabling; radiculopathy 
of the left lower extremity, rated 10 percent disabling; 
radiculopathy of the right lower extremity, rated 10 percent 
disabling; residuals of stress fracture of right heel, rated 
10 percent disabling, for a combined disability evaluation, 
including a bilateral factor of 2.7 percent, of 70 percent. 

3. The veteran's service-connected disabilities are of such a 
nature and severity as to preclude him from gainful 
employment. 


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 60 
for DDD of the lumbar spine percent are not met.  38 U.S.C.A. 
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 
3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5293 & 
5243 (2002-2007).  

2. The requirements for a total evaluation based on 
individual unemployability due to service-connected 
disabilities have been met.  38 U.S.C.A. §§ 1155, 5103, 
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.16 
(2007).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and to assist 
claimants in substantiating VA claims.  See 38 U.S.C.A. 
§§ 5103, 5103A and 38 C.F.R § 3.159.  This notice is only 
required to be given in sufficient time to enable a claimant 
to submit relevant evidence.  The notice may be generic 
without identifying evidence specific to the individual 
claim, although it must be tailored to the nature of the 
claim.  It does not extend throughout the claim process.  
Wilson v. Mansifeld, 506 F.3d 1055, 1059-60 (Fed. Cir. 2007). 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) the VA must notify a claimant of 
the information and evidence needed to substantiate a claim, 
which information and evidence the VA will obtain, and which 
the claimant must provide.  The VA must request any evidence 
in a claimant's possession that pertains to the claim.  See 
38 C.F.R. § 3.159.  

But, the VA is not required to provide a predecisional 
adjudication of what evidence is needed to grant a claim 
because "the duty to notify deals with evidence gathering, 
not analysis of already gathered evidence" nor is the VA 
required to provide notice "upon receipt of every piece of 
evidence or information."  Locklear v. Nicholson, 20 Vet. 
App. 410, 415 (2006).  

In service connection claims, the notice must also state what 
is needed to substantiate all five elements of a service 
connection claim, which are: 1) veteran status; 2) existence 
of a disability; (3) a connection between the veteran's 
service and the disability; 4) degree of disability; and 5) 
effective date of the disability.  Dingess v. Nicholson, 
19 Vet. App. 473 (2006).  

The VCAA notice was intended to be provided before the 
initial unfavorable adjudication by the RO.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

A review of the record shows the veteran was provided with 
pre-adjudication VCAA notice on the claim for service 
connection for lumber DDD by letter, dated in April 2001.  
The veteran was notified of the evidence needed to 
substantiate a claim of service connection, namely, evidence 
of an injury, disease, or event causing an injury or disease 
during service; evidence of current disability; and evidence 
of a relationship between the current disability and the 
injury, disease, or event causing an injury or disease during 
service.  The veteran was also notified that the VA would 
obtain service records, VA records, and records from other 
Federal agencies, and that he could submit private medical 
records or authorize the VA to obtaining private medical 
records on his behalf.  

Here, the claimant was notified of the law and regulations 
governing effective dates and rating service-connected 
disorders by letter associated with the June 2006 
supplemental statement of the case.  

As for content of the VCAA notice, the documents 
substantially comply with the specificity requirements of 
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying 
evidence to substantiate a claim and the relative duties of 
VA and the claimant to obtain evidence), of Charles v. 
Principi, 16 Vet. App. 370 (2002) (identifying the document 
that satisfies VCAA notice); and, of Pelegrini, supra 
(38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 
Vet. App. 473 (2006) (notice of the five elements of a 
service connection claim), aff'd Hartman v. Nicholson, --- 
F.3d ----, 2007 WL 1016989 (C.A. Fed. 2007).  

The VCAA notice requirements in a claim for increase include 
notice of the type of evidence needed to substantiate a 
claim, namely, evidence demonstrating a worsening or increase 
in severity of the disability and the effect that worsening 
has on the claimant's employment and daily life.  Also, if 
the Diagnostic Code under which the claimant is rated 
contains criteria necessary for entitlement to a higher 
disability rating that would not be satisfied by 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the VA must provide at least 
general notice of that requirement.  Vasquez-Flores v. Peake, 
22 Vet. App. 37 (2008). 

Where, as here, service connection has been granted and an 
initial disability rating has been assigned, the claim has 
been more than substantiated, it has been proven, thereby 
rendering 38 U.S.C.A. § 5103(a) notice no longer required 
because the purpose that the notice was intended to serve has 
been fulfilled.  Furthermore, once a claim for service 
connection has been substantiated, the filing of a notice of 
disagreement with the RO's rating of the disability does not 
trigger additional 38 U.S.C.A. § 5103(a) notice.  

Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) 
and § 3.159(b)(1) is no longer applicable in the claim for an 
initial rating in excess of 60 percent for the service-
connected DDD of the lumbar spine.  Dingess at 19 Vet. App. 
473. 

Duty to Assist

As required by 38 U.S.C.A. § 5103A, VA has made reasonable 
efforts to identify and obtain relevant records in support of 
the claims.  

The veteran was afforded the opportunity to testify at RO 
hearings in March 2003 and May 2005 as well as at a personal 
hearing before the BVA in September 2006. 

The RO has obtained the veteran's service medical records and 
VA treatment records.  The veteran has submitted private 
medical treatment records.  Records from the Social Security 
Administration are also on file.  The veteran has not 
identified any additionally available evidence for 
consideration in his appeal.  In fact, at the September 2006 
BVA hearing the veteran testified that there were no 
outstanding private clinical records (although since then a 
May 2007 private physician's statement has been received).  
Transcript at 17.  

The veteran has been afforded several VA rating examinations 
for the claim for DDD of the lumbar spine.  McLendon v. 
Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 
F.3d 1381 (Fed. Cir. 2003).  38 U.S.C.A. § 5103A(d)(2); 38 
C.F.R. § 3.159(c)(4)(i).

As there is no indication that the veteran was unaware of 
what was needed for claim substantiation nor any indication 
of the existence of additional evidence for claim 
substantiation, the Board concludes that there has been full 
VCAA compliance.  

Lastly, in light of the allowance of a TDIU rating any VCAA 
noncompliance as to that issue is nonprejudicial.  

DDD of the Lumbar Spine

Disability evaluations are determined by comparing the 
veteran's symptomatology with the criteria set forth in 
Diagnostic Codes (DCs) in VA's Schedule for Rating 
Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 
C.F.R. Part 4.  Rating a service-connected disability 
requires that it be viewed historically, that reports be 
reconciled into a consistent picture to accurately reflect 
the elements of the disability and that the disability be 
described in terms of the person's function under the 
ordinary conditions of daily life including employment.  38 
C.F.R. §§ 4.1, 4.2, 4.10.  A 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.  Not all disorders will 
show all the findings specified for a particular disability 
rating, especially with the more fully described grades of 
disabilities but coordination of ratings with functional 
impairment is required.  38 C.F.R. § 4.21.  When there is an 
approximate balance of positive and negative evidence the 
benefit of the doubt is to be resolved in the veteran's 
favor.  38 U.S.C.A. § 5107(b).  

The Board will consider whether separate ratings may be 
assigned for separate periods of time based on facts found, a 
practice known as "staged ratings," whether it is an initial 
rating case or not.  Fenderson v. West, 12 Vet. App. 119, 
126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 
(2007). 


Pertinent Rating Criteria

The criteria for rating intervertebral disc syndrome (IVDS), 
38 C.F.R. § 4.71a, DC 5293, were revised effective September 
23, 2002, to provide for either a single evaluation based on 
incapacitating episodes or separate ratings, for combination 
under 38 C.F.R. § 4.25, for chronic orthopedic and neurologic 
manifestations, whichever results in a higher evaluation.  
Other than IVDS under DC 5293, the criteria for evaluating 
spinal disabilities DCs 5285 through 5295 (2002) ("the old 
criteria") were revised effective September 26, 2003, at 
which time the DCs were renumbered, including the renumbering 
DC 5295 to DC 5237 and adding DC 5242 for degenerative 
arthritis (yet also retaining DC 5003 for degenerative 
arthritis).  A General Rating Formula for Diseases and 
Injuries of the Spine was established, to which Note 6 
provides that IVDS is to be rated either under (1) the 
General Rating Formula, as to which Note 1 provides that 
associated objective neurologic abnormalities are separately 
rated under an appropriate DC, or (2) under an established 
Formula for Rating IVDS Based on Incapacitating Episodes 
(incorporating the 'incapacitation' criteria of the revised 
DC 5293).  See 68 Fed. Reg. 51,454 (Aug. 27, 2003), codified 
at 38 C.F.R. § 4.71a, DC 5243 (2004) ("the new criteria").  

The veteran's claim for service connection for his now 
service-connected low back disorder was received in December 
1999, prior to the revision.  

When law or regulation change the most favorable version 
applies and where an effective date is specified but there is 
no provision for retroactive applicability, application of 
the revised regulations prior to the stated effective date is 
precluded.  VAOPGCPREC 7-2003 (Nov. 19, 2003) (addressing the 
holding in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) 
overruling Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991)).  
See also VAOGCPREC 3-2000 (Apr. 10, 2000); VAOPGCPREC 11-97 
(Mar. 25, 1997); 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114.  

So, here, both the old and the new rating criteria must be 
applied.  In rating the spinal disorder for the period prior 
to the effective dates of the respective revisions, only the 
old rating criteria may be applied, but both the old and the 
new rating criteria, whichever is most beneficial to the 
veteran, will be applied for the period beginning as of the 
respective effective dates.  

Prior to revision of the schedular rating criteria on 
September 23, 2002, a 60 percent rating, which is the highest 
possible rating under this code, was warranted for pronounced 
IVDS manifested by persistent symptoms compatible with 
sciatic neuropathy with characteristic pain and demonstrable 
muscle spasm, absent ankle jerk, or other neurological 
findings appropriate to the site of the diseased disc, and 
little intermittent relief.  38 C.F.R. § 4.71a, DC 5293 (as 
in effect prior to September 23, 2002).  

VAOGCPREC 36-97 (Dec. 12, 1997) requires that in determining 
disability evaluations under DC 5293, 38 C.F.R. §§ 4.40 
(functional loss may be due to pain) and 4.45 (pain on motion 
is a factor in joint disability) must be considered because 
nerve defects and pain may limit spinal motion, even if the 
current rating were to correspond to the maximum rating 
(under the criteria in effect prior to September 26, 2003) 
for limited spinal motion.  It was also held that 38 C.F.R. 
§ 3.321(b)(1), entitlement to an extraschedular rating, must 
also be considered.  Sanchez-Benitez v. West, No. 00-7099, 
slip op. at 10 and 11 (Fed. Cir. August 3, 2001) (case 
remanded for failure to discuss 38 C.F.R. § 3.321(b)(1) 
extraschedular consideration).  

As indicated, for the period prior to September 23, 2002, 
only the old IVDS rating criteria under DC 5293 may be 
applied, but either the old or the new IVDS rating criteria 
(whichever are most beneficial), may be applied for the 
period beginning September 23, 2002.  38 U.S.C.A. § 5110(g); 
38 C.F.R. § 3.114.  

The IVDS criteria prior to September 23, 2002, focused on 
subjective classifications of the overall degree of 
impairment from IVDS.  As of September 23, 2002, the 
pertinent considerations - either preoperatively 
or postoperatively, are (1) whether the veteran has had 
incapacitating episodes during the immediately preceding 12 
months and, if so, the total duration of them, or (2) whether 
he should receive a higher rating based on a combination of 
the neurologic and orthopedic manifestations of his 
disability under 38 C.F.R. § 4.25.  Whichever method results 
in the higher evaluation is the one that must be used.  

When rating based on incapacitating episodes, if there are 
incapacitating episodes having a total duration of at least 
six weeks during the past 12 months, a maximum 60 percent 
rating is warranted.  No rating higher than 60 percent is 
provided for on the basis of incapacitating episodes.  

An incapacitating IVDS episode is a period of acute signs and 
symptoms requiring bed rest prescribed by a physician and 
treatment by a physician.  Note 1 to the revised DC 5293.  
Supplementary Information in the published final regulations 
states that treatment by a physician would not require a 
visit to a physician's office or hospital but would include 
telephone consultation with a physician.  If there are no 
records of the need for bed rest and treatment, by 
regulation, there were no incapacitating episodes.  67 Fed. 
Reg. 54345, 54347 (August 22, 2002).  

When assessing the severity of a musculoskeletal disability 
that, as here, is at least partly rated on the basis of 
limitation of motion, VA must also consider the extent the 
veteran may have additional functional impairment above and 
beyond the limitation of motion objectively demonstrated, 
such as during times when his symptoms are most prevalent 
("flare-ups") due to the extent of his pain 
(and painful motion), weakness, premature or excess 
fatigability, and incoordination - assuming these factors 
are not already contemplated by the governing rating 
criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 
see also 38 C.F.R. §§ 4.40, 4.45, 4.59.  

The revised spinal rating criteria created a General Rating 
Formula for Diseases and Injuries of the Spine, which uses 
more objective criteria and other pertinent considerations 
with or without symptoms such as pain (radiating or not), 
stiffness, or aching and thus encompass and take into account 
these symptoms and remove any requirement that there be any 
of these symptoms to assign any evaluation.  68 Fed. Reg. at 
51454 - 51455 (August 27, 2003).  They provide for ratings 
based on limitation of motion of a particular spinal segment 
in either forward flexion or the limitation of the combined 
range of motion of that spinal segment, either favorable or 
unfavorable ankylosis, or with respect to the entire spine if 
there is loss of more than 50 percent vertebral body height 
due to vertebral fracture or muscle spasm and guarding.  

Note 2 to the General Rating Formula provides that normal 
forward flexion of the thoracolumbar spine is to 90 degrees, 
extension is to 30 degrees, left and right lateral flexion 
as well as left and right lateral rotation are to 30 
degrees.  The combined range of motion refers to the sum of 
these ranges of motion and 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.  

A 40 percent rating is warranted when forward flexion of the 
thoracolumbar spine is to 30 degrees or less; or, there is 
favorable ankylosis of the entire thoracolumbar spine.  A 50 
percent rating is warranted for unfavorable ankylosis of the 
entire thoracolumbar spine.  A 100 percent rating is 
warranted if there is unfavorable ankylosis of the entire 
spine.  (See Note 5 for descriptions of favorable and 
unfavorable ankylosis).  

Ankylosis is immobility and consolidation of a joint due to 
disease, injury or surgical procedure.  Lewis v. Derwinski, 3 
Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 
Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. 
App. 218, 221 (1995).  Ankylosis is stiffening or fixation of 
a joint as the result of a disease process, with fibrous or 
bony union across the joint.  Dinsay v. Brown, 9 Vet. 
App. 79, 81 (1996).  

Background and Evidence

Dr. Antonacci reported in September 1999 that on examination 
the veteran had pain on hyperextension of the back, relieved 
by flexion.  The impression was spinal stenosis.  An October 
1999 private lumbar MRI revealed a large herniation at L4-5 
that was migrating caudally.  It displaced the thecal sac and 
encroached on both nerve roots.  There was a smaller L5-S1 
herniation as well.  In September 2000 Dr. DeGiacomo reported 
that the veteran had severely disabling degenerative 
arthritis and sciatica of the back.  

On a VA neurology examination in August 2001 there was 
flattening of the veteran's lumbar spine and 10 percent 
limitation of motion of motion of the lumbar spine.  There 
was very mild muscle spasm.  X-rays of November 1988 revealed 
disc space narrowing at L5-S1.  The pertinent diagnosis was a 
chronic low back strain.  

On a VA spinal examination in August 2001 there was no muscle 
spasm.  There was limitation of motion of the lumbar spine.  
The pertinent diagnosis was low back degeneration.  

A September 2001 VA outpatient treatment reflects that the 
veteran had incontinence of urine that might be related to 
his sleep apnea.  

At the March 2003 RO hearing the veteran testified that due 
to low back problems he had difficulty walking any great 
distance and had difficulty getting out of bed in the morning 
as well as standing for long periods of time.  Transcript at 
2.  He took medication for relief of back pain.  Transcript 
at 5.  In the past he had tried using a back brace but it was 
uncomfortable.  He used a walker as an ambulatory aid due to 
the combination of his disabilities of the low back, legs, 
and right foot.  Transcript at 6-7.  If he fell down, he 
could not arise unassisted and, so, carried a whistle to 
signal for help.  Transcript at 9.  He was now retired.  
Transcript at 25.  

In September 2003 Dr. Massoud reported treating the veteran 
for lumbar DDD and lumbar radiculitis with medication and 
physical therapy.  

On a VA general medical examination in May 2004 the veteran's 
gait appeared normal but he used a walker for balance.  On VA 
orthopedic examination in May 2004 it was noted that the 
veteran could walk a short distance with a walker or cane as 
stand by help.  He needed help in toileting and washing his 
body.  He had retired as a salesman in 1997.  On examination 
his gait was antalgic.  There was limitation of motion of the 
thoracolumbar spine.  Repeated motion increased his pain 
tremendously.  There was muscle spasm and generalized 
tenderness but no fixed deformity or scoliosis.  There was no 
sensory deficit and motor strength was essentially 5/5.  
There was no vertebral fracture.  The diagnoses were chronic 
low back pain at L4-5-S1, lumbar DDD at multiple levels, and 
a lumbar strain.  

The report of a private MRI in September 2004 shows L4-L5 and 
L5-S1 degenerative herniations with encroachment of the right 
L4 nerve root and the left L5 root.

At the May 2005 RO hearing the veteran testified that due to 
his service-connected low back disorder he had often fallen.  
His wife assisted him in attending to the wants of nature.  
He had difficulty getting out of a chair.  Transcript at 3.  
He had used a walker for a couple of years.  Transcript at 4.  
He had problems with his balance and numbness of his legs.  
Transcript at 5.  

On a December 2005 VA neurological examination there was 
tenderness at L4-5 lumbar paravertebral muscles.  Motor 
strength of the lower extremities, both proximally and 
distally, was 4/5 and there was no lower extremity atrophy.  
Deep tendon reflexes were hypoactive all over and 1+ 
symmetrical on both upper and lower extremities.  He had 
decreased pinprick and light touch sensation symmetrically in 
a stocking fashion.  The diagnoses were chronic lower back 
strain, bilateral lumbosacral radiculopathy, and peripheral 
neuropathy of both upper and lower extremities secondary to 
type 2 diabetes mellitus.  The examiner opined that it was at 
least as likely as not the current lumbosacral radiculopathy 
pain was secondary and related to his degenerative joint 
disease of the lumbosacral spine. 

On a VA orthopedic examination in December 2005 it was noted 
that the veteran had diabetes.  He complained of intermittent 
urinary incontinence but his bowels were intact.  He had 
received nerve blocks from a private physician with only 
limited benefit.  His gait was unsteady.  He had not had back 
surgery.  He claimed to be incapacitated almost every day 
during the past year.  On examination he declined to perform 
range of motion tests.  He had mild tenderness to palpation 
the paraspinal muscles, bilaterally.  He was able to transfer 
from his wheelchair to a standing position without apparent 
difficulty.  The examiner noted that May 2004 VA X-rays 
revealed disc space narrowing and endplate sclerosis at L4-L5 
and L5-S1.  There was no evidence of fracture or subluxation.  
The examiner felt that both obesity and the aging process 
also contributed to the veteran's low back and bilateral 
lower extremity pain.  

On another VA examination in December 2005, to evaluate the 
veteran's radiculopathy, it was found that he had some spasm 
at the L4-5 region.  Flexion was to only 45 degrees, both 
lateral flexions were to 10 to 15 degrees, and extension was 
to 12 degrees.  It was felt that his peripheral neuropathy of 
the upper and lower extremities was due to type 2 diabetes 
mellitus but other diagnoses were chronic low back strain and 
bilateral lumbosacral radiculopathy.  

In September 2006 Dr. DeGiacomo reported treating the veteran 
for back and leg pain.  

At the September 2006 BVA hearing the veteran's wife 
testified that he had last worked 9 years ago as the manager 
of a monument company that made headstones.  Transcript at 4.  
The veteran testified that had been employed at that job for 
18 years.  Transcript at 5.  He had left his employment 
because of impairment due to his low back disability.  
Transcript at 6.  He took pain medication.  Transcript at 8.  
He had fallen because of problems with his legs.  He had 
numbness of his legs.  Transcript at 9.  He had used a walker 
for the last year or two and he used a back brace when at 
home.  Transcript at 11.  He had received Social Security 
Administration disability benefits but this was switched to 
retirement benefits when he reached age 65.  He had received 
those disability benefits due to his back, sleep apnea, and 
shoulder problems.  Transcript at 14.  

On a VA examination in May 2007 it was noted that the veteran 
used a cane, a walker, and wore a back brace.  He reported 
that he was unable to work and had not worked in 
approximately 10 years.  He attended the examination in a 
wheelchair.  He had constant back pain without flare-ups or 
incapacitating episodes.  He reported that he was unable to 
walk or do any work around the house.  He had no sensation 
changes and no bowel or bladder changes.  He stated that he 
occasionally had difficulty making it to the bathroom in time 
because of his difficulty walking.  He had not had any recent 
physical therapy.  Past epidural injections had not provided 
relief from pain.  

On examination the veteran did not give a full effort on 
lower extremity examination, stating that he was in too much 
pain.  He was able to stand and walk.  There was swelling of 
the lower extremities.  Motor strength, grossly, was -5/5, 
distally and proximally.  Deep tendon reflexes were 1/4.  
Muscle tone was normal.  He had some swelling over the right 
ankle.  There was no axial tenderness or deformities of the 
lumbosacral spine.  Examination of the spine was limited 
because the veteran complained of having too much pain.  He 
had difficulty standing.  Although it was stated that he 
refused range of motion testing, flexion was recorded to be 
to 10 degrees, extension to approximately 10 degrees, right 
lateral bending was to 5 degrees, left lateral bending was to 
10 degrees, rotation to the right was to 10 degrees, and 
rotation to the left was to 5 degrees.  He complained of pain 
in all planes of motion.  There seemed to be significant 
symptom magnification.  Straight leg raising was negative.  
As to any ankylosis of the lumbosacral spine, the examiner 
stated that this could not be determined due to the veteran's 
refusal to perform range of motion testing.  The assessment 
was a lumbar sprain/strain, lumbar degenerative disc disease, 
and a right ankle sprain/strain.  The examiner opined that 
the veteran should be able to engage in sedentary work, e.g., 
desk work, light duties, sitting, and standing, in the nature 
of office work.  It was suggested that he not engage in heavy 
physical employment and no lifting or pulling of greater than 
25 lbs. and, also, that any type of physical labor should be 
avoided.  

Analysis

Here, there is no evidence of unfavorable ankylosis of the 
entire spine which would warrant a 100 percent schedular 
rating on the basis of the new spinal rating criteria, which 
is the only evaluation higher than the current, an initial, 
60 percent disability rating.  A rating in excess of 60 
percent was not provided for under the old spinal rating 
criteria or under the old criteria for rating IVDS.  

This leaves only the matter of whether a combination of 
orthopedic and neurologic symptoms would result in a higher 
rating.  In other words, separate ratings may be assigned for 
radiculopathy of a lower extremity due to the IVDS.  Here, 
this has already been done, with a 10 percent rating being 
assigned for radiculopathy of each lower extremity.  
Moreover, the proper evaluation for the radiculopathy of each 
lower extremity is not now before the Board, having been 
adjudicated in the Board's February 2007 decision.  

Additionally, a rating in excess of 60 percent is not 
provided for under the new IVDS rating criteria.  Moreover, 
there is no evidence of a vertebral deformity which would 
warrant the addition of an extra 10 percent to the current 60 
percent disability rating.  

In sum, the evidence simply does not establish that the 
veteran's service-connected lumbar disability is of such 
severity as to warrant a rating in excess of the current and 
initial 60 percent rating at any time during this appeal.  

The veteran also is not shown to warrant consideration for an 
extra-schedular rating for the service-connected disorder at 
issue under the provisions of 38 C.F.R. § 3.321(b)(1).  He 
has not been recently hospitalized on account of his low back 
disability and the disorder is not affirmatively shown to be 
of such a nature as to otherwise render impractical the 
application of the regular schedular standards.  Admittedly, 
his overall functional impairment may hamper his performance 
in some respects, but certainly not to the level that would 
require extra-schedular consideration since those provisions 
are reserved for very special cases of impairment that simply 
is not shown here.  Consequently, the Board does not have to 
remand this case to the RO for further consideration of this 
issue.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); 
Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 
8 Vet. App. 218, 227 (1995). 

TDIU

Total disability ratings are authorized for any disability-
or combination of disabilities-for which the Rating Schedule 
prescribes a 100 disability evaluation, or, with less 
disability, if certain criteria are met.  Where the schedular 
rating is less than total, a total disability rating for 
compensation purposes may be assigned when the disabled 
person is unable to secure or follow a substantially gainful 
occupation as a result of his disability(ies)-provided that, 
if there is only one such disability, it 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, 
4.15, 4.16; see also Fluharty v. Derwinski, 2 Vet. App. 409, 
411 (1992); Hatlestad (I) v. Derwinski, 1 Vet. App. 164, 165 
(1991).  

The veteran is service-connected for DDD of the lumbar spine, 
rated 60 percent disabling; radiculopathy of the left lower 
extremity, rated 10 percent disabling; radiculopathy of the 
right lower extremity, rated 10 percent disabling; residuals 
of stress fracture of right heel, rated 10 percent disabling.  
There is a combined disability evaluation, including a 
bilateral factor of 2.7 percent, of 70 percent. 

While the regulations do not provide a definition of 
"substantially gainful employment," VA Adjudication Procedure 
Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the 
term as "that which is ordinarily followed by the nondisabled 
to earn their livelihood with earnings common to the 
particular occupation in the community where the veteran 
resides."  In Faust v. West, 13 Vet. App. 342 (2000), the 
Court defined "substantially gainful employment" as an 
occupation that provides an annual income that exceeds the 
poverty threshold for one person, irrespective of the number 
of hours or days that the veteran actually works and without 
regard to the veteran's earned annual income [ ] ."  Other 
factors to be considered in determining whether a veteran is 
unemployable are his level of education, his employment 
history, and his vocational attainment.  
See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro 
v. Derwinski, 1 Vet. App. 326, 331-332 (1991).  

In VA Form 21-8940, application for a total rating, in 
November 2003 the veteran reported having four years of high 
school education.  He had last worked in March 1997.  He 
reported that he could not stand for long due to constant 
pain in his back, legs, and feet.  He had great difficulty 
even getting in and out of a car.  

The veteran has been awarded disability benefits by the 
Social Security Administration, although that award also 
considered disabilities for which the veteran is not service-
connected, i.e., his nonservice-connected diabetes, 
hypertension, left shoulder disorder, and sleep apnea.  For 
example, Dr. DeGiacomo reported in April 1998 that the 
veteran had sleep apnea and was considered totally disabled 
from gainful employment and should be so considered for an 
indefinite time.  

It is quite apparent from the relevant evidence of record 
that the combination of service-connected and nonservice-
connected disabilities renders the veteran unemployable.  
However, the determinative issue is whether the service-
connected disabilities, alone, preclude obtaining or 
retaining substantially gainful employment.  That is to say, 
the conditions that are not service connected cannot serve as 
a basis for granting the claim for a TDIU; rather, 
unemployability must be irrespective of these nonservice-
connected conditions.  

In short, the question here is whether the service-connected 
disabilities alone preclude substantially gainful employment.  

On VA orthopedic examination in May 2004 it was felt that the 
veteran was not employable due to many factor, mainly his 
medical factor, depression and particularly his back problem.  
In August 2004 Dr. DeGiacomo reported that he had treated the 
veteran for intermittent heel and back pain since 1979, which 
had progressed to be severe disabling degenerative arthritis 
and sciatica of the back.  Due to this, he was not able to 
work.  This is in contrast to the VA orthopedic examination 
in December 2005 when an examiner felt that the veteran 
should be able to perform sedentary employment.  

In August 2006, and again in May 207, Dr. Prakhina reported 
that the veteran was being treated for lumbar disc 
herniation, sacroiliatis [sic], and radiculopathy.  He was 
totally and permanently disabled from any gainful employment.  
It is clear that the physician meant that the disabilities 
listed in his statements were the factors causing the 
veteran's inability to obtain gainful employment.  

Also, a VA physician reported in November 2007 that the 
veteran was being treated for chronic bilateral L4-5 
radiculopathy, sensorineural peripheral neuropathy affecting 
his lower extremities, as shown on a private EMG examination, 
and L4-5, L5-S1 disc herniations, as shown on an MRI.  
Secondary to these findings, the veteran would be unable to 
sustain gainful employment because of his chronic 
disabilities.  

The VA outpatient treatment records of November 2007 include 
a statement by a physician that the veteran and his wife had 
been interviewed and, together with another VA physician, the 
veteran had been examined.  It was opined that the veteran 
was not able to work due to his current multiple disabling 
medical and neurologic conditions. 

Absent affirmative evidence of employability, mere 
speculation as to a claimant's employability cannot form the 
basis for the Board's denial of a TDIU rating.  See Bowling 
v. Principi, 15 Vet. App. 1, 8 - 9 (2001); James v. Brown, 7 
Vet. App. 495, 497 (1995) (reversing denial of § 4.16(a) 
TDIU-rating claim when Board was not convinced that there 
were not some jobs that the applicant could do but did not 
cite any evidence in support of its conclusion); Brown v. 
Brown, 4 Vet. App. 307, 309 (1993) (reversing denial of 
§ 4.16(a) TDIU-rating claim because '[t]he BVA, in 
speculating on [the veteran's] employability, did not point 
to a single piece of evidence supporting its conclusion that 
the veteran is able to pursue substantially gainful 
employment').  '[T]o merely allude to ... [an] occupational 
history, attempt in no way to relate these factors to the 
disabilities of the appellant, and conclude that some form of 
employment is available, comes very close to placing upon the 
appellant the burden of showing he can't get work'.  Gleicher 
v. Derwinski, 2 Vet. App. 26, 28 (1991)."  Knowles v. 
Principi, 19 Vet. App. 535, 2004 WL 1043725 (Vet. App.).

In deciding whether the veteran is unemployable due to the 
various disabilities related to his service in the military, 
it is the Board's obligation to weigh any contrasting or 
conflicting medical diagnoses or opinions.  See Schoolman v. 
West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. 
App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 
433 (1995).  

When the impact of the veteran's service-connected 
disabilities of the right foot and each leg are combined with 
the severe impairment from his service-connected lumbar DDD, 
it is the judgment of the Board that the veteran's service-
connected disorders preclude substantially gainful 
employment.  In reaching this conclusion, the Board has 
considered the conflicting opinions as to the veteran's 
employability and finds that the evidence is so evenly 
balanced that with the favorable resolution of doubt in the 
veteran's favor, the claim for a TDIU rating must be granted.  
Accordingly, a TDIU rating is warranted.  


ORDER

An initial rating in excess of 60 percent for DDD of the 
lumbar spine is denied. 

Subject to the provisions governing the award of monetary 
benefits, a total evaluation based on individual 
unemployability due to service-connected disabilities is 
granted.  



____________________________________________
RAYMOND F. FERNER
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs