Citation Nr: 1225331 Decision Date: 07/20/12 Archive Date: 07/30/12 DOCKET NO. 06-12 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating in excess of 40 percent for status-post right hemilaminectomy and discectomy, L5-S1. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active duty service from February 1977 to June 1977 and from March 1978 to June 1998. This matter came before the Board of Veterans' Appeals (Board) initially on appeal of a June 2005 rating decision of the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claim for an increased rating for a lumbar spine disability. The evidence of record reflects that the Veteran has undergone several surgeries on his lumbar spine, which have required at least some period of convalescence. At such, the Board finds that that the issue of entitlement to a temporary total rating due to surgery related to his service-connected lumbar spine disability has been raised by the record, and is referred to the RO for appropriate development. The Board remanded the instant matter in March 2010 and again in July 2011 for additional development. FINDINGS OF FACT 1. The Veteran's service-connected status-post right hemilaminectomy and discectomy, L5-S1, is not productive of unfavorable ankylosis of the entire thoracolumbar spine. 2. The evidence demonstrates moderate incomplete paralysis of the sciatic nerve of the right lower extremity. 3. The evidence demonstrates moderate incomplete paralysis of the sciatic nerve of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for status-post right hemilaminectomy and discectomy, L5-S1, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5243 (2011). 2. The schedular criteria for a separate 20 percent disability rating for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520 (2011). 3. The schedular criteria for a separate 20 percent disability rating for radiculopathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, the Veteran was sent a letter in March 2005, prior to the initial adjudication of the claim, that provided information as to the division of responsibilities between VA and a claimant in developing an appeal. In April 2006 and April 2010, the Veteran was sent letters that complied with the requirements set out in Dingess. In addition, the April 2010 letter met the generic requirements in Vazquez. Any potential prejudice to the Veteran by receiving this notice subsequent to the initial adjudication of the claim was resolved by the issuance of a March 2012 supplemental statement of the case. See Mayfield, Prickett. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA treatment and examinations, and private treatment. A review of Virtual VA does not reveal any additional documents pertinent to the present appeal. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The Board notes that this case has been remanded for additional development, and that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The March 2010 remand included instructions to provide the Veteran with a VA examination to determine the current level of impairment due to service-connected low back disability, to include noting any neurologic impairment associated with the back disability. The Veteran was provided with an examination in June 2010; however, as the examiner did not respond to the questions regarding the neurological impairment associated with the Veteran's service-connected low back disability, the Board again remanded the case in July 2011 in order to obtain a medical opinion with regard to whether the Veteran had neurological abnormalities associated with his lumbar spine disability and, if so, the severity of such disorders. A VA examiner provided an opinion in August 2011 that the Veteran had radiculopathy of the lower extremities, related to his lumbar spine disability. This examiner did not comment in detail on the severity of radiculopathy and, as such, the Veteran was provided with a VA neurological examination in January 2012, which reflected a thorough picture of effects of the Veteran's radiculopathy of his lower extremities. The Board finds that the VA examinations are adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the right and left knee disabilities and left hip disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). As such, the Board finds that the RO has substantially complied with the March 2010 and July 2011 remand instructions. Accordingly, the Board finds that all reasonable efforts have been undertaken by VA with respect to the instant appeal, and no further development is required under these circumstances. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. 41. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet.App. 505 (2007). The following analysis is therefore undertaken with consideration that different (staged) ratings may be warranted for different time periods during the period of appellate review beginning within one year of the Veteran's claim for an increase. Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2011). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined above), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2011). Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There are several notes set out following the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 thoracolumbar spine is to 240 degrees. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Id. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which 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. Id. Ankylosis is immobility and consolidation of a joint due to disease, injury, 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). Note (6) provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. Evaluations of intervertebral disc syndrome (IVDS) are assigned under Diagnostic Code 5243, which provides that the disability is to be rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. The schedular criteria for incapacitating episodes provides that a 10 percent evaluation is assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent evaluation is assigned IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a. An 'incapacitating episode' is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). A recent case has held that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Finally, the Board notes that the joining of schedular criteria in the rating schedule by the conjunctive 'and' in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met. Tatum v. Shinseki, 23 Vet. App. 152 (2009). In this case, the Veteran's lumbar spine disability has been rated under Diagnostic Code 5243, at a 40 percent disability rating. The Board finds that a higher disability rating is not warranted, as the evidence of record does not reflect that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. The Veteran has been provided with VA spine examinations in May 2005 and June 2010. These examiners have not assessed the Veteran with ankylosis in his lumbar spine. In fact, the June 2010 examiner specifically stated that the Veteran does not have ankylosis. While the Veteran has had multiple surgeries on his lumbar spine, he reported, in March and April 2005 private medical records, that he had not undergone any fusion. As such, a higher disability rating under the General Formula is not warranted. In addition, there is no evidence of incapacitating episodes, as defined in the regulation, having a total duration of at least six weeks during any twelve month period of the appeals period. At his May 2005 VA examination, the Veteran reported that he had been prescribed bedrest in while working in industrial maintenance in the years after he left service. However, these episodes appear to have occurred prior to the appeals period for his current claim and, in any event, there is no evidence that he was prescribed bedrest for more than six weeks during a twelve month period. At the June 2010 examination report, the Veteran reported no incapacitating episodes. There is no other evidence in the claims file which reflects that that Veteran had incapacitating episodes to the extent to warrant a higher evaluation under the rating criteria for incapacitating episodes. Significantly, the Board finds that the medical evidence demonstrates consistently and throughout that, over the entire appeals period, the Veteran meets the criteria for a 40 percent disability rating for his service-connected status-post right hemilaminectomy and discectomy, L5-S1. The criteria for rating disabilities of the spine instruct that any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, be rated separately under an appropriate Diagnostic Code. In this regard, the Board finds that the evidence of record supports separate disability ratings of 20 percent for radiculopathy of each of the lower extremities. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, atrophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term 'incomplete paralysis' indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2011). For neurological manifestations, DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and these criteria are incorporated into the criteria for rating neuritis of that nerve under DC 8620 and neuralgia of that nerve under DC 8720. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis that is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2011). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran here has reported pain radiating from his lumbar spine to his lower extremities throughout the appeals period. The Board remanded this case in order to obtain an opinion as to whether there were neurological abnormalities related to the service-connected lumbar spine disability. At his May 2005 VA examination, the Veteran reported numbness in his legs and aching to sharp pain radiating at times down both legs, which was typically at a level of 3/10 but, when severe, 10/10. He had decreased pinprick sensation in both lower extremities in an L5 distribution. At his June 2010 VA examination, the Veteran reported that he worsening pain which radiated down his legs and to his toes. He indicated that his pain was mild to moderate. The claims file was provided to a VA examiner for an opinion, and in August 2011, a VA examiner opined that the Veteran had lumbar radiculopathy related to his service-connected lumbar spine disability. The Veteran reported pain radiating down both legs to his toes, but no weakness, fatigue or functional loss. The examiner noted that the Veteran had reported at his earlier examination that his pain did affect his recreational activities and his work in that he stands for long periods of time, as he was a teacher and lectured as part of his job. The Veteran also noted that he could not drive for long periods of time without experiencing pain radiating down his legs. The examiner indicated that the specific nerves involved included the L5-S1 distribution. The Veteran was provided with a VA neurological examination in January 2012. The examiner noted moderate, constant pain in his lower extremities, which was intermittently severe. In addition, there was moderate paresthesias and/or dysethesias and numbness in his lower extremities. The Veteran had 1+ reflexes in his knee and ankle, and decreased in his lower legs, ankles, feet and toes, along the L4/L5/S1 distribution. The examiner noted moderate, incomplete paralysis in his sciatic nerve in both lower extremities. The Veteran reported that his neurological abnormalities decreased his productivity at work, as he could not do extra work he wanted to complete to prepare for his classes. In light of the above, the Board finds that the appropriate diagnostic code for rating radiculopathy of the lower extremities is Diagnostic Code 8520, pertaining to disabilities of the sciatic nerve. As the Veteran has been found to have moderate, incomplete paralysis of the sciatic nerve in both lower extremities, separate 20 percent disability ratings for each lower extremity are warranted. Extraschedular considerations In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet.App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). In Thun v. Peake, 22 Vet.App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms reported by the Veteran associated with his service-connected low back disability and related neurological abnormalities are adequately described in the in the criteria found in the relevant diagnostic codes for the disabilities at issue. The Veteran has reported pain in his back and pain and numbness in both lower extremities. The rating criteria for the spine includes such symptoms as limitation of motion, ankylosis, pain, weakness, fatigability, and incoordination. The rating criteria for radiculopathy include impaired function due to pain and numbness. In short, the rating criteria contemplate not only his symptoms but the severity of his disabilities. For these reasons, referral for extraschedular consideration is not warranted. TDIU The United States Court of Appeals for Veterans Claims (Court) has held that entitlement to a TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is 'whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran noted in a June 2005 statement that he was unable to work due to his service-connected disability. The RO sent him a letter in May 2005, informing him of the evidence and information necessary to substantiate a claim for entitlement to TDIU, and asking him to submit evidence or statements to show that he was unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. However, the Veteran did not respond to the letter, and has submitted no evidence that he is unable to work. The RO denied his claim in a November 2006 rating decision, and the Veteran did not file a notice of disagreement to the decision. In fact, evidence in the claims file reflects that the Veteran was in school to become a teacher and is been employed as a teacher. While it appears that he has been employed part-time, there is no evidence that this would be considered marginal employment, as would be considered in a TDIU claim. Accordingly, for the above reasons a claim of entitlement to TDIU is not deemed to be a component of the instant appeal in this case. (CONTINUED ON NEXT PAGE) ORDER A disability rating in excess of 40 percent for status-post right hemilaminectomy and discectomy, L5-S1, is denied. A separate evaluation of 20 percent for radiculopathy of the right lower extremity, is granted, subject to the laws and regulations governing the payment of VA monetary benefits. A separate evaluation of 20 percent for radiculopathy of the left lower extremity, is granted, subject to the laws and regulations governing the payment of VA monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs