Citation Nr: 1014167 Decision Date: 04/14/10 Archive Date: 04/29/10 DOCKET NO. 08-39 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE 1. Entitlement to a disability rating greater than 20 percent for a service-connected lumbar spine disability prior to May 15, 2009. 2. Entitlement to a disability rating greater than 40 percent for a service-connected lumbar spine disability after May 15, 2009. 3. Entitlement to a separate rating for incomplete sciatic nerve paralysis of the right lower leg. 4. Entitlement to a separate rating for incomplete sciatic nerve paralysis of the left lower leg. 5. Entitlement to a separate rating for urinary frequency. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Arif Syed, Law Clerk INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1974 to August 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In the August 2007 rating decision, the RO granted service connection for a lumbar spine disability [diagnosed as residuals of a law back injury with current degenerative changes in the lumbar spine], assigning a 10 percent disability rating effective October 16, 2006. In a November 2007 rating decision, the RO granted an increased disability rating as to the Veteran's lumbar spine disability, assigning a 20 percent disability rating effective October 16, 2006. A July 2009 rating decision granted an increased 40 percent rating for service-connected lumbar spine disability effective from May 15, 2009. The Board notes that the United States Court of Appeals for Veterans Claims (hereinafter "the Court") has recently held that a claim for TDIU is generally a rating theory and "not a separate claim for benefits." See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). It was further noted that it may be construed as part of a claim perfected on appeal for an increased rating under alternative VA regulations. Id. at 456. The Board notes that the evidence of record indicates a TDIU claim should be construed in this case as part of the issues developed for appellate review. Although this matter was not specifically adjudicated and developed on appeal, the Board finds the Veteran is not prejudiced by this decision. See Bernard v. Brown, 4 Vet. App. 384 (1993). FINDINGS OF FACT 1. The medical and other evidence of record indicates that prior to May 15, 2009, the Veteran's service-connected lumbar spine disability was manifested by pain, limitation of motion, and forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. The medical and other evidence of record indicates that after May 15, 2009, the Veteran's service-connected lumbar spine disability was manifested by pain, limitation of motion, and forward flexion of the thoracolumbar spine less than 30 degrees, but without evidence of ankylosis. 4. The medical and other evidence of record indicates that the Veteran has mild incomplete sciatic nerve paralysis of the right leg due to his service-connected lumbar spine disability. 5. The medical and other evidence of record indicates that the Veteran has mild incomplete sciatic nerve paralysis of the left leg due to his service-connected lumbar spine disability. 6. The medical and other evidence of record indicates that the Veteran has urinary frequency with a daytime voiding interval of one to two hours due to his service-connected lumbar spine disability. 7. The Veteran's service-connected disabilities are so disabling as to preclude him from securing or following substantially gainful employment in keeping with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability prior to May 15, 2009, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2009). 2. The criteria for a disability rating in excess of 40 percent for the Veteran's service-connected lumbar spine disability after May 15, 2009, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2009). 3. The criteria for a separate 10 percent rating, but no higher, for sciatic nerve paralysis of the right leg due to a service-connected lumbar spine disability have been met. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2009). 4. The criteria for a separate 10 percent rating, but no higher, for sciatic nerve paralysis of the left leg due to a service-connected lumbar spine disability have been met. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2009). 5. The criteria for a separate 20 percent rating, but no higher, for urinary frequency due to a service-connected lumbar spine disability have been met. 38 C.F.R. § 4.115a, Diagnostic Code 7542 (2009). 6. The criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 3.340, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). 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 issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of this notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to appellant describing evidence potentially helpful to the appellant, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal. The Board observes that the Veteran received a general VCAA notice letter dated December 2006. Although the aforementioned VCAA letter did not specifically include any information pertaining to evidence necessary to substantiate a claim for a higher rating, once service connection is granted the notice requirements of 38 U.S.C.A. § 5103(a) are satisfied and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also VAOPGCPREC 8-2003. In any event, as is detailed below, the Veteran received VCAA notice pertaining to increased ratings in the December 2006 and a January 2009 letter. The RO informed the Veteran of VA's duty to assist him in the development of his claim in the above-referenced December 2006 VCAA letter. Specifically, the letter stated that VA would assist the Veteran in obtaining relevant records from any Federal agency, including those from the military, VA medical centers, and the Social Security Administration. The Veteran was also advised in the letter that a VA examination would be scheduled if necessary to make a decision on his claim. With respect to private treatment records, the VCAA letter informed the Veteran that VA would make reasonable efforts to request such records. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that each claim of entitlement to service connection consists of five elements: (1) veteran status [not at issue here]; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because each service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply to all five elements of each claim. The Veteran was provided specific Dingess notice in the December 2006 VCAA letter, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The Veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations, and statements from employers as to job performance and time lost due to service-connected disabilities. Accordingly, the Veteran received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. Assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating this claim. The evidence of record includes the Veteran's service treatment records, the Veteran's statements, as well as VA and private treatment records. Additionally, the Veteran was afforded VA examinations in January 2007, September 2007, and May 2009. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. In his November 2008 substantive appeal [VA Form 9], he declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision. Relevant law and regulations Disability ratings Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2009). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) [holding, "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"]. Rating musculoskeletal disabilities The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2009). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40 (2009). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2009). Assignment of diagnostic code The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's service-connected lumbar spine disability is currently rated under Diagnostic Code 5242 [degenerative arthritis of the spine]. In any event, all spinal disabilities, except intervertebral disc syndrome, are rated under the General Rating Formula for Diseases and Injuries of the Spine. The evidence of record indicates that the Veteran reported to the May 2009 VA examiner that he experiences numbness and weakness in his legs and feet. Further, upon neurological examination, the May 2009 and September 2009 VA examiners noted that the Veteran experienced hypoactive reflexes, indicating neurological impairment. Although the medical evidence of record does not indicate that the Veteran has been diagnosed with intervertebral disc syndrome, he has complained of pain radiating from his lower back to his legs, particularly in his left leg, which lasts several hours. See the May 2009 VA examination report. Based on reported neurological symptomatology, the Board will rate the Veteran under both the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome and will apply the higher rating as appropriate. Specific schedular criteria (i). General Rating Formula for Diseases and Injuries of the Spine The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2009). (ii). Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009). (iii). Sciatic Nerve Paralysis VA regulation provide for alternative separate, combined ratings for chronic orthopedic and neurological manifestations of intervertebral disc syndrome. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral the rating should include the application of the bilateral factor. 38 C.F.R. § 4.124a (2009). Under Diagnostic Code 8520, a maximum schedular rating of 80 percent is awarded for complete paralysis of the sciatic nerve. With complete paralysis, the foot dangles and drops, there no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. When there is incomplete paralysis, a 60 percent rating is in order for severe disability with marked muscular atrophy. Moderately severe incomplete paralysis warrants a 40 percent evaluation, moderate incomplete paralysis warrants a 20 percent rating, and mild incomplete paralysis warrants a 10 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2009). The words "mild," "moderate," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2009). The Board observes that "Mild" is generally defined as "not being or involving what is extreme." "Moderate" is generally defined as "of average or medium quality, amount, scope, range, etc." "Severe" is generally defined as "of a great degree: serious." See Webster's Eleventh New Collegiate Dictionary, pp. 787, 798 and 1140 (2007). The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8730 (2009). Analysis Schedular rating (i) Orthopedic Disability. Staged ratings are currently in effect for the Veteran's lumbar spine disability: the disability has been rated as 20 percent disabling from October 16, 2006, the date of the Veteran original claim to May 15, 2009, and 40 percent thereafter. After reviewing the medical evidence, the Board has determined that the Veteran's orthopedic disability rating has been appropriately staged. The medical evidence of record prior to May 15, 2009, reflects manifestations that more closely correspond to a 20 percent disability rating; a September 2007 VA examination included range of motion testing which revealed forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. Combined range of motion was 127 degrees. There were subjective complaints of pain with all motions, but no indicating of any additional measurable limitation of motion as a result of pain or dysfunction. Gait and curvature of the spine were normal. However, the May 15, 2009, VA examination report indicated worsening of the Veteran's lumbar spine disability, notably range of motion testing which revealed forward flexion of the thoracolumbar spine less than 30 degrees. Forward flexion was from 0 to 15 degrees with objective evidence of additional limitation of motion due to pain. The May 15, 2009 VA examination report indicates a worsening of the Veteran's lumbar spine disability, and a 40 percent disability was established from that date. The Board, therefore, finds that the Veteran's lumbar spine disability ratings have been appropriately staged. To warrant a 50 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must show unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2009). Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The Board notes that the May 2009 VA examiner specifically noted the absence of thoracolumbar spine ankylosis. Additionally, thoracolumbar range of motion studies conducted during the May 2009 VA examination demonstrate that the Veteran was able to achieve 0 to 15 degrees flexion, and 0 to 20 degrees right lateral flexion. The Veteran's lumbar spine was not immobile. (ii). Incapacitating Episodes. To warrant a 60 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the evidence must show that the Veteran has experienced incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Further, as noted in the schedular criteria, 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. The Veteran reported to the May 2009 VA examiner that he experiences a shooting pain in his lower back that moves down his legs on a daily basis as well as weekly flare-ups of his lumbar spine disability. He further reported that when he experiences the shooting pain and flare-ups, he must rest, wear his back brace, take medication, lie straight, and sit in a whirlpool bath. Although the Veteran reported that he experienced incapacitating episodes of pain, the medical evidence does not indicate, and the Veteran does not contend, that he has been prescribed bed rest by a physician based on incapacitating episodes. Therefore, the Veteran's service- connected lumbar spine disability does not warrant an increased disability rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. (iii). Neurologic Disabilities. The Board finds, however, that it was the opinion of a January 2007 VA examiner that the Veteran demonstrated definite evidence of radiculopathy. A subsequent March 29, 2007, VA electromyogram (EMG) report provided evidence of "possible L5-S1 radiculopathy," denervation findings in one muscle, and extensor hallucis longis (EHL) which revealed wide motor units. A September 2007 VA examination report noted impaired light touch sensation to the left lower extremity. Knee and ankle jerks were hypoactive. At his May 2009 VA examination the Veteran stated that he experienced urinary incontinence and urinary frequency with a daytime voiding intervals of one to two hours which the examiner indicated was related to the Veteran's lumbar spine disability. The examiner indicated that upon physical examination there was evidence of muscle atrophy, decreased pinprick sensation in the right and left legs, and impaired sensation in the Veteran's lower extremities. The examiner noted, however, that the Veteran had normal muscle tone, was not absent all sensation in his lower extremities, and had active movement below the knees. The regulation revisions specifically provide for separate ratings for chronic orthopedic and neurological manifestations of intervertebral disc syndrome. The evidence of record demonstrates no more than a mild incomplete sciatic nerve paralysis of the right and left lower extremities and urinary frequency with daytime voiding intervals of one to two hours. Therefore, separate 10 percent ratings for the right and left legs and a separate 20 percent rating for urinary frequency due to his service- connected lumbar spine disability, but no higher, are warranted. TDIU VA law provides that a total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. It is provided further that the existence or degree of nonservice- connected disabilities or previous unemployability status will be disregarded where the required percentages 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. 38 C.F.R. § 4.16(a) (2009). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Age may not be considered as a factor in evaluating service- connected disability; and unemployability, in service- connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2009). The Court has held that in determining whether the veteran is entitled to a total disability rating based upon individual unemployability neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. In this case, VA records show service connection is established for lumbar spine disability (40 percent), maxillary sinusitis (30 percent), urinary frequency (20 percent), mild incomplete sciatic nerve paralysis of the right lower extremity (10 percent), and mild incomplete sciatic nerve paralysis of the left lower extremity (10 percent). As the schedular criteria for TDIU are met, the determinative issue is whether the evidence demonstrates the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. Based upon the evidence of record, the Board finds the Veteran's service-connected disabilities are shown to be so disabling as to preclude him from securing or following substantially gainful employment in keeping with his education and occupational experience. The May 15, 2009, VA examiner stated that the Veteran's service-connected degenerative arthritis of the spine prevented him from obtaining gainful sedentary or physical employment. It was noted he was unable to stand for more than a few minutes and the examiner stated that based upon her observations he would not be able to obtain gainful sedentary employment because he was unable to sit with a normal posture. It was further noted that he was previously employed in construction and that his inability to bend, lift, twist, and walk independently would make it impossible for him to obtain physical employment. The Board finds this opinion is persuasive. Therefore, entitlement to TDIU is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 20 percent for a lumbar spine disability prior to May 15, 2009, is denied. Entitlement to a rating in excess of 40 percent for a lumber spine disability after May 15, 2009, is denied. Entitlement to a separate 10 percent rating for mild sciatic nerve incomplete paralysis of the right leg is allowed, subject to the regulations governing the payment of monetary awards. Entitlement to a separate 10 percent rating for mild sciatic nerve incomplete paralysis of the left leg is allowed, subject to the regulations governing the payment of monetary awards. Entitlement to a separate 20 percent rating for urinary frequency is allowed, subject to the regulations governing the payment of monetary awards. Entitlement to TDIU is allowed, subject to the regulations governing the payment of monetary awards. ______________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs