Citation Nr: 0813346 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-11 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran had active military service from August 1951 to June 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that in pertinent part granted service connection and assigned a 10 percent rating for degenerative joint disease of the lumbar spine, effective December 1, 2003. In a January 2006 rating decision, the RO increased the veteran's evaluation for degenerative joint disease of the lumbar spine to a 20 percent rating, also effective December 1, 2003. The issue of entitlement to a higher disability evaluation based upon an initial grant of service connection remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim on appeal has been accomplished. 2. Competent medical evidence demonstrates that the veteran's service-connected degenerative joint disease of the lumbar spine is manifested by limitation of motion that does not equate to forward flexion of the thoracolumbar spine 30 degrees or less or to favorable ankylosis of the entire thoracolumbar spine. 3. The veteran's service-connected disabilities consist of degenerative joint disease of the lumbar spine rated as 20 percent disabling and bilateral pes planus with metatarsalgia rated as 50 percent disabling. 4. The veteran is a high school graduate with 4 years of college and is not currently employed. 5. Competent medical evidence does not indicate that the veteran's service-connected disabilities alone preclude him from engaging in substantially gainful employment that is consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The schedular criteria for an initial rating in excess of 20 percent for degenerative joint disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.71a, 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2007). 2. The criteria for a total disability rating based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 3.340, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the veteran's claims for entitlement to service connection and a TDIU were received in December 2003. In correspondence dated in January 2004, April 2004, and May 2004, he was notified by the RO of the provisions of the VCAA as they applied to service connection and TDIU claims. These letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claims, identified the veteran's duties in obtaining information and evidence to substantiate his claims, and requested that the veteran send in any evidence in his possession that would support his claims. In a November 2004 rating decision, the RO granted entitlement to service connection and assigned an initial 10 percent rating for degenerative joint disease of the lumbar spine. The veteran appealed the assignment of the initial evaluation for this benefit and the denial of entitlement to TDIU. In November 2005 correspondence, he was again notified by the RO of the provisions of the VCAA as they applied to increased rating and TDIU claims. In a January 2006 rating decision, the RO increased the veteran's evaluation for degenerative joint disease of the lumbar spine to a 20 percent rating, also effective December 1, 2003. Thereafter, the claims were reviewed and a statement of the case was issued in January 2006. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Mayfield v. Nicholson (Mayfield III), 07-7130 (Fed. Cir. September 17, 2007). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in March 2006. The claim for an initial evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine is a downstream issue from the grant of service connection. See Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel recently held that no VCAA notice was required for such downstream issues, and that a Court decision suggesting otherwise was not binding precedent. See VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004); cf. Huston v. Principi, 17 Vet. App. 370 (2002). The Board is bound by the General Counsel's opinion. See 38 U.S.C.A. § 7104(c) (West 2002). While this logic is called into some question in a recent Court case, neither this case nor the GC opinion has been struck down. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. The veteran's service treatment records and all relevant VA treatment records pertaining to his service-connected conditions have been obtained and associated with his claims file. He has also been provided with multiple VA medical examinations to assess the current state of his service- connected degenerative joint disease of the lumbar spine. Furthermore, the veteran has not identified any additional, relevant evidence that has not otherwise been requested or obtained. He has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims. As a final matter, the Board notes the contention of the veteran's representative that additional development was not required in this case. In his March 2006 statement, the veteran's representative argues that the RO's further development, ordering and obtained an additional VA spine examination for evaluation of the veteran's service-connected lumbar disability in December 2005, constituted the development of negative evidence in violation of Mariano v. Principi, 17 Vet. App. 305 (2003). VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Nonetheless, VA has discretion to determine when additional information is needed to adjudicate a claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the veteran's claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). It is noted that the veteran's representative argued that the veteran's October 2004 VA orthopedic examinations were insufficient and did not accurately represent the level of veteran's lumbar spine symptomatology in the January 2005 notice of disagreement. Thereafter, the RO ordered an another VA orthopedic examination in December 2005 to obtain additional evidence pertaining to the veteran's increased rating claim for degenerative joint disease of the lumbar spine and concerning the effects of his service-connected foot and lumbar spine disabilities on his ability to obtain and maintain substantially gainful employment. As noted above, VA has discretion to determine when additional information is needed to adjudicate a claim. In this case, the Board notes that the RO ordered another examination, not for sole purpose of obtaining evidence unfavorable to a claimant, but to obtain additional information to assist in adjudicating the veteran's claims and to address the contention of the veteran's representative that prior examinations were insufficient. The veteran's representative also argued that the December 2005 VA spine examination was inadequate because the VA examiner believed that the veteran's lumbar spine condition was not a service-connected condition. However, the Board notes that the examiner's belief concerning whether the veteran's lumbar spine disability was service-connected does not render unreliable the range of motion measurements taken in order to evaluate the severity of the veteran's lumbar spine disability under 38 C.F.R. § 4.71a, as those measurements involve scientific tests and are not conclusions drawn by the VA examiner. II. Initial Rating for Degenerative Joint Disease of the Lumbar Spine The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2007) (Schedule). To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2007). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2007). In addition, where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2007). The Court has also held that, in a claim of disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The veteran is currently assigned a 20 percent rating for degenerative joint disease of the lumbar spine under Diagnostic Code 5242, effective December 1, 2003. Under the current rating criteria, degenerative arthritis of the spine (designated at Diagnostic Code 5242) is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 ***Intervertebral disc syndrome ***Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under Sec. 4.25. General Rating Formula for Diseases and Injuries of the Spine: (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): Ratin g 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 Unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10 Note: (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note: (2) (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. Note: (3) In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note: (4) Round each range of motion measurement to the nearest five degrees. Note: (5) 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. Note: (6) Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes 5243 Intervertebral disc syndrome Ratin g With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months 60 With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months 40 With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20 With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10 Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. See 38 C.F.R. § 4.71a (2007). 5003 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). The United States Court of Appeals for Veterans Claims (the Court) held that in evaluating a service-connected disability, functional loss due to pain under 38 C.F.R. § 4.40 (2007) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2007) must be considered. The Court also held that, when a Diagnostic Code does not subsume 38 C.F.R. §§ 4.40 and 4.45, those provisions are for consideration, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Factual Background and Analysis After a review of the evidence, the Board finds that the evidence does not support the assignment of an initial rating in excess of 20 percent for degenerative joint disease of the lumbar spine. VA treatment notes dated in December 2002 indicate that the veteran received a cane to assist in ambulation. In an August 2003 treatment record, the veteran's private physician, Dr. Miller, listed an assessment of lumbar arthrosis. In a November 2003 statement, the physician indicated that the veteran suffered from degenerative joint disease of the lumbar spine. It was further opined that the veteran's lumbar condition was contributed to, in part, by bilateral pes planus and metatarsalgia diagnosed in the military in 1951. During an October 2004 VA orthopedic examination of the spine, the veteran complained of frequent back pain of mild severity. It was noted that the veteran exhibited moderate decreased motion with no radiation, fatigue, weakness, or spasm. Physical examination findings were noted as normal gait and posture with no intervertebral disc disease, ankylosis, or objective evidence of lumbar sacrospinalis. Active and passive range of motion findings of the lumbar spine were listed as: forward flexion was to 60 degrees, extension was to 10 degrees; right and left lateral flexion were to 15 degrees; and right and left rotation were to 15 degrees. Neurological, sensory, motor, and reflex examination findings were noted to be normal with the veteran exhibiting active movement against full resistance and normal reflexes. The examiner indicated that the veteran's service- connected lumbar spine disability had a significant effect on his occupational activities due to decreased mobility. It was further noted that the veteran's service-connected lumbar spine disability had a mild effect on daily activities, including chores, shopping, exercise, sports, recreation, and traveling. The examiner diagnosed degenerative joint disease of the lumbar spine. VA X-ray examination findings dated in July 2004 revealed degenerative changes seen of the lumbar spine most significant at L1-2 and L2-3. The examiner compared the findings to a prior May 2004 study and listed an impression of no significant change in degenerative changes of the lumbar sacral spine as well as unchanged bilateral SI joint osteoarthritis unchanged. During a December 2005 VA orthopedic examination of the spine, the veteran complained of pain localized to the lower lumbar area that radiated downwards to his right hip. He further indicated that his pain was dull and achy, sometimes wakes him at night, and escalates with walking. He did not describe any physically incapacitating episodes. Physical examination findings were noted as very slow shuffling gait, uses cane for stability, negative straight leg raising testing, and normal motor, sensory, and reflex findings. Range of motion findings of the lumbar spine were listed as forward flexion was to 40 degrees with pain, extension was to 0 degrees; right and left lateral flexion were to 10 degrees with pain in the right hip; and right and left rotation were to 10 degrees. The examiner further indicated that no attempts were made to fatigue the veteran due to his unsteadiness. The examiner diagnosed multilevel degenerative disc disease and bilateral sacroiliac joint arthritis with signs and symptoms suggestive of a spinal stenosis. The aforementioned evidence does not reflect any findings that would warrant a rating excess of 20 percent solely under the criteria of the General Rating Formula. None of the competent medical evidence of record shows that the veteran suffers from forward flexion of the thoracolumbar spine limited to 30 degrees or less or from favorable ankylosis of the entire thoracolumbar spine. Further, the Board finds that a higher rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Competent medical evidence does not show that the veteran suffers from intervertebral disc syndrome, to include any incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months to warrant the assignment of a 40 percent rating. In fact, as stated, the veteran did not described any incapacitating episodes caused by the thoracolumbar back disorder. As indicated above, the General Rating Formula also directs that neurological manifestations of should be rated separately from orthopedic manifestations. However, objective compensable neurologic manifestations associated with the veteran's service-connected lumbar spine disabilities are clearly not documented in the competent medical evidence of record. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. In this regard, the Board notes that October 2004 VA examination findings detailed that the veteran did not exhibit any fatigue, weakness, or muscle spasm. Although it was noted that the veteran was unsteady on his feet and that no attempts were made to fatigue him due to this unsteadiness during the December 2005 VA examination, these findings of incoordination have already been taken into consideration in the assignment of the current 20 percent rating. The Board acknowledges the veteran and his representative's contentions that his degenerative joint disease of the lumbar spine is more severely disabling. However, the veteran is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. See Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). For all the foregoing reasons, the veteran's claim for entitlement to initial rating in excess of 20 percent for degenerative joint disease of the lumbar spine must be denied. The Board has considered staged ratings, under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes that they are not warranted. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disability that would take the veteran's case outside the norm so as to warrant the assignment of an extraschedular rating. While it was noted that the veteran's service-connected lumbar disability had a significant effect on his occupational activities due to decreased mobility in the October 2004 VA examination report, the veteran has continually referred to himself as "retired" and has not attempted to obtain employment since retirement. Consequently, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). TDIU The veteran contends that he is entitled to TDIU, as his service-connected disabilities, pes planus and degenerative joint disease of the lumbar spine, render him unemployable. Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340 (2007). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and 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. See 38 C.F.R. § 4.16 (2007). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) Disabilities resulting from common etiology or a single accident; (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric; (4) Multiple injuries incurred in action; or (5) Multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 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. See 38 C.F.R. § 4.16(a) (2007). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. See 38 C.F.R. §§ 3.341(a), 4.19 (2007). Factors to be considered are the veteran's education, employment history and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). A high disability rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. However, the question in a total rating case based upon individual unemployability due to service-connected disabilities is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The veteran's service-connected disabilities consist of degenerative joint disease of the lumbar spine rated as 20 percent disabling and bilateral pes planus with metatarsalgia rated as 50 percent disabling. With a combined total rating of 60 percent for disabilities affecting his orthopedic system, the veteran meets the schedular criteria for consideration of a TDIU rating under 38 C.F.R. § 4.16(a) (2007). The Board must now determine whether competent medical evidence of record shows that the veteran's service- connected foot and lumbar spine disabilities alone preclude him from engaging in substantially gainful employment. Evidence of record indicates that the veteran is a high school graduate with 4 years of college and is not currently employed. Previous employment until he retired was a sales representative for a glass manufacturer. An August 2001 VA treatment note listed nonservice-connected medical problems including status post repair of abdominal aortic aneurysm, gouty arthritis, neck pain, chronic renal insufficiency, allergies, hypertension, and hypercholesterolemia. It was also noted that the veteran had been involved in a motor vehicle accident in February 2001, and was currently receiving physical therapy for resulting neck and back pain. VA treatment notes dated in December 2002 indicate that the veteran received a cane to assist in ambulation. In a May 2002 VA feet examination report, the examiner discussed the effect of the veteran's foot condition on his daily activity, indicating that the veteran has pain on walking and is restricted in the amount of walking he can do. X-ray findings revealed moderate degenerative joint disease of the tarsal metatarsal joint and metarsal phalangeal joint (right greater than the left), subluxation of the right 3rd and 4th metatarsal phalangeal joint, degenerative spurs at the inferior aspect of the calcaneus, and mild pes planus. In an August 2003 treatment record, the veteran's private physician, Dr. Miller, listed an assessment of lumbar arthrosis, degenerative joint disease of the bilateral knees, gouty arthropathy, olecranon bursa of the left elbow, and triggering right finger. The physician noted that he did not feel given the veteran's medical condition, that he was employable, nor did he feel that the veteran would improve to the point that he would be employable. In a December 2003 statement, the veteran indicated that he was totally disabled due to his bilateral foot and lumbar conditions. An April 2004 VA Form 21-4192 (Request for Employment Information in Connection With Claim for Disability Benefits), as completed by the veteran's former employer, Ball Corporation, states that he worked 40+ hours per week from August 1966 to October 1993. The form also indicates he retired from that job, for reasons other than disability, effective September 31, 1993. No concessions were made to him on account of age or disability prior to his retirement. In a May 2004 VA feet examination report, the examiner listed diagnoses of 1) bilateral pes planus; 2) unresolved onychomyocosis of bilateral feet; 3) hammertoe deformities of bilateral feet; 4) bilateral metatarsal spine with spurs with hallux valgus deformity; 5) degenerative changes at tarsometatarsal joints; 6) bone cyst formation at the head of the metatarsals; 7) degenerative joint disease of the tarsometatarsal joint, metatarsophalangeal joints, right greater than the left; 8) deformity and subluxation of the right third and fourth metatarsophalangeal joint; and 9) degenerative spurs at the inferior aspect of the calcaneus. It was further noted that the veteran sits most of the time secondary to pain he experiences in his feet with walking. During an October 2004 VA orthopedic examination of the spine, the veteran complained of frequent back pain of mild severity and moderate decreased motion with no radiation, fatigue, weakness, or spasm. The examiner indicated that the veteran's service-connected lumbar spine disability had a significant effect on his occupational activities due to decreased mobility. It was further noted that the veteran's service-connected lumbar spine disability had a mild effect on daily activities, including chores, shopping, exercise, sports, recreation, and traveling. The examiner diagnosed degenerative joint disease of the lumbar spine. During an October 2004 VA orthopedic examination of the spine, the veteran reported that his employment as a traveling salesman had required a lot of walking, which he is now unable to perform due to his foot and back pain. The veteran further indicated that he would like to go back to the same type of job but has not tried to get a job with less walking due to the cut in salary. During a December 2005 VA orthopedic examination, the examiner indicated, in terms of the veteran's usual occupation and activities of daily living, that veteran stated he was presently retired. It was noted that he used to work as a sales representative for a glass manufacturer and had not attempted to obtain employment since retirement. The veteran complained that he was no longer able to play golf or walk along the beach due to his foot and back pain. The examiner listed an impression of severe pes planus involving bilateral feet, hallux valgus deformity, pronation involving right foot, and claw foot deformity. The examiner also diagnosed multilevel degenerative disc disease and bilateral sacroiliac joint arthritis with signs and symptoms suggestive of a spinal stenosis. Upon review of the history of the veteran's service-connected disabilities, the Board notes that competent medical evidence of record does not show that the veteran's service-connected foot and lumbar spine disabilities alone preclude him from engaging in substantially gainful employment. The Board notes that the October 2004 VA examiner indicated that the veteran's service-connected lumbar spine disability has a significant effect on his occupation activities and that the veteran's private physician did not feel the veteran was employable given his "medical condition". However, there is no competent medical evidence or opinion of record that indicates the veteran is unemployable solely due to his service-connected foot and lumbar spine disabilities alone. The Board recognizes that the veteran's service-connected foot and lumbar spine disabilities affect his ability secure or follow a substantially gainful occupation. In recognition of the severity of his service-connected disabilities, the veteran is currently rated as a combined 60 percent disabled. The record further reflects that the veteran suffers from multiple nonservice-connected disabilities including degenerative joint disease of the bilateral knees, gouty arthropathy, olecranon bursa of the left elbow, triggering right finger, abdominal aortic aneurysm, gout, neck pain, chronic renal insufficiency, allergies, hypertension, and hypercholesterolemia. In addition, evidence of record continually notes that the veteran refers to himself as "retired" and that he has not attempted to obtain employment since his retirement in 1993. Consequently, the Board concludes that a preponderance of the evidence supports the decision that the veteran's service-connected foot and lumbar spine disabilities alone do not preclude him from engaging in substantially gainful employment. See 38 C.F.R. § 4.16(a) (2007). Therefore, the evidence does not support the assignment of a TDIU rating. ORDER Entitlement to an initial evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine is denied. Entitlement to TDIU is denied. ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs