Citation Nr: 1301951 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 10-38 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for lumbosacral strain with arthritis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from April 1954 until March 1956. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The claim has since been transferred to the jurisdiction of the RO in Nashville, Tennessee. This matter was previously before the Board in June 2012. The Board remanded the claim for additional development, including consideration of the neurological manifestations of the lumbosacral strain with arthritis. In a September 2012 rating decision, the Appeals Management Center (AMC) granted service connection for impairment of the sciatic nerves of both legs, with 20 percent disability ratings effective September 25, 2009. The AMC also granted service connection for impairment of the anterior crural nerves of both legs, with 20 percent disability ratings effective September 25, 2009. Those decisions represent full grants of those claims. As such, they are not currently before the Board. The Veteran submitted an October 2009 correspondence from Dr. T. S. Evans. Dr. Evans reported that the Veteran is unable to work due to osteoarthritic changes in his weight bearing joints and weakness in the legs. Additionally, the August 2012 VA examiner found that the Veteran's lumbar spine disability would severely limit his ambulation and cause him to be unable to meet work requirements. The Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. As such, the Board has added the issue of entitlement to TDIU. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal, other than additional VA medical records. The RO/AMC has associated additional evidence, specifically, additional VA medical records in the Virtual VA claims file, but the record is unclear as to whether such evidence was reviewed in conjunction with the September 2012 supplemental statement of the case. The Veteran has not provided a waiver of his right to have that evidence considered as an initial matter by the RO. See 38 C.F.R. §19.37. However, since the additional evidence is not relevant to the current issue of an increased rating, it need not be considered by the RO prior to this appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's lumbosacral strain with arthritis is not manifested by ankylosis. 2. The Veteran is service-connected for lumbosacral strain with arthritis (with a 40 percent disability rating), bilateral impairment of the sciatic nerve (with a 20 percent disability rating for each leg), and bilateral impairment of the anterior crural nerve (with a 20 percent disability rating for each leg). 3. The Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for lumbosacral strain with arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for the establishment of TDIU due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In this case, the Board is granting in full the claim of TDIU. Even assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, at to that matter, such error was harmless and will not be further discussed. With regard to the claim for an increased rating, VA has met the duty to notify and assist the claimant in substantiating this claim for VA benefits, as provided by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim. Proper notice will inform the Veteran of what evidence VA will seek to provide, and of what evidence the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2011). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information regarding the disability rating and effective date for the award of benefits if service connection is awarded. Id. at 486. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. In the case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), however, the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. In a claim for increase, the VCAA requirement is generic notice, that is, 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 (Fed. Cir. Sept. 4, 2009). In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in October 2009, prior to the initial RO decision that is the subject of this appeal. Through the letter VA informed the Veteran that the evidence must support a worsening of his disability to substantiate the claim. The letter also informed him of VA's duty for obtaining pertinent evidence under federal control and that it would aid him in obtaining pertinent evidence not under federal control, but that it was his responsibility to obtain such evidence. The letter also included notice with respect to the Dingess requirements, of the type of evidence necessary to establish a disability rating and an effective date. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With regard to records, VA has associated with the claims folder the Veteran's service treatment records and pertinent VA medical records. The development direct by the Board in the June 2012 remand has also been accomplished. The AMC has associated the Veteran's most recent VA medical records with the Virtual VA claims file, requested private medical treatment information from the Veteran (in a June 2012 letter) and obtained a new VA examination to determine the current level of severity of the back disability (in a August 2012 VA examination that included medical opinions addressing the severity of the back disability). The Veteran has not indicated that there exist any records of VA or private medical treatment records relative to this claim that are not already in the claims file. 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). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. 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). Hence, 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Law Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Lumbosacral Strain with Arthritis Analysis The Veteran contends that his service-connected lumbosacral strain with arthritis is more severe than indicated by his assigned evaluation 40 percent disability rating. Lumbar spine disabilities are rated on the basis of limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. A note following the schedular criteria indicates that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension from 0 to 30 degrees, left and right lateral flexion from 0 to 30 degrees, and left and right lateral rotation from 0 to 30 degrees. C.F.R. § 4.71a. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Diagnostic Codes 5235-5243. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under the formula, 40 percent evaluation would only be warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation, which would be the next higher applicable rating, would only be warranted for unfavorable ankylosis of the entire thoracolumbar spine. The next higher rating would be a 100 percent evaluation for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The Veteran currently receives a 40 percent disability rating for his lumbosacral strain with arthritis. The evidence of record generally consists of some VA medical records documenting complaints of, or treatment for, the spine and other disorders. Additionally, private medical records also document complaints of, or treatment for, various skeletal and neurological disorders. Such records, however, generally do not include information for the current rating purposes. The February 2011 initial evaluation by Dr. D. Thomas does note, however, that the Veteran does not have bowel or bladder incontinence, but does have urgency. The December 2009 VA examiner noted multiple ranges of motion, including flexion from zero to 70 degrees; extension from zero to 20 degrees; left lateral flexion from zero to 20 degrees; left lateral rotation from zero to 40 degrees; right lateral flexion from zero to 25 degrees and right lateral rotation from zero to 40 degrees. The examiner also found objective evidence of pain following repetitive motion, but that such testing would be too painful. The August 2012 VA examiner also noted multiple ranges of motion, including flexion to 30 degrees, extension to 10 degrees; bilateral lateral flexion to 5 degrees; and bilateral lateral rotation to 5 degrees. The August 2012 VA examiner also noted that painful motion began at zero degrees for all ranges of motion and that the Veteran was unable to perform repetitive motion testing. Under Diagnostic Code 5242, the next-higher 50 percent evaluation would only be warranted for unfavorable ankylosis of the entire thoracolumbar spine. An even higher rating would only be warranted for a finding of unfavorable ankylosis of the entire spine. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the ranges of motion found by the VA examiners in December 2009 and August 2012 VA examinations, the Board finds that that the Veteran does not have ankylosis. As such, a disability rating in excess of 40 percent is not warranted. To the extent that the Veteran may be reporting pain associated with his full range of motion, the Court has recently held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 42 (2011). Indeed, the Court found that nothing in its case law supports an appellant's contentions that she should be given the maximum disability ratings under Diagnostic Code 5260 and 5261 simply because she experienced pain throughout the range of motion of her left knee. Id. at 11. It is necessary to consider, along with the schedular criteria, functional loss due to flareups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206-7. The Board finds that there is evidence of functional impairment as a result of flareups of symptomatology, but that this functional impairment was contemplated by the RO when granting the 40 percent disability evaluation. Even when considering the Veteran's pain with motion and his reports of loss of motion, the Veteran still does not meet the criteria for a disability rating in excess of 40 percent. The Board notes that the rating contemplates complaints of pain, especially on extended use. There is no showing of any other functional impairment which would warrant a higher rating for the complaints of pain. The next higher ratings applicable for the Veteran require ankylosis of the spine, showing no range of motion. Any additional loss of range of motion short of ankylosis would not support a higher rating for the Veteran's claim. Additionally, Diagnostic Code 5242, Note 1 indicates that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. The Board notes that the Veteran does have diagnoses of bilateral radiculopathy of the lower extremities, as found by the August 2012 VA examiner. As previously noted, the AMC (in a September 2012 rating decision) granted service connection for impairment of the sciatic and anterior crural nerves bilaterally. Such grants of service connection were full grants of those issues and the Veteran has not disputed those decisions. As such, those matters are not before the Board. In regards to other objective neurologic abnormalities, the August 2012 VA examiner found no other neurologic abnormalities (such as bowel or bladder problems/pathologic reflexes) related to the spine. In February 2011, Dr. Evans also found the Veteran to have no bowel or bladder incontinence. The Veteran has not reported having any neurologic disorders, other than for the lower extremities for which he already has service connection. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Veteran also does not have incapacitating episodes due to his lumbar spine disability. Under the current regulations, Diagnostic Code 5243, intervertebral disc syndrome can be rated under the General Rating Formula for the Spine or based on incapacitating episodes. Under Diagnostic Code 5243, based on incapacitating episodes, a 60 percent rating evaluation would require incapacitating episodes of a total duration of at least 6 weeks during the past 12 months, with an "incapacitating episode" defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. During the August 2012 VA examination, the Veteran denied having incapacitating episodes over the past 12 months due to his intervertebral disc syndrome. No medical evidence shows that the Veteran had incapacitating episodes prescribed by a physician or as part of a physician's treatment for his service-connected back disability. There is also no evidence that the Veteran was ever hospitalized for his disability. As such, a rating in excess of 40 percent based on intervertebral disc syndrome is not applicable. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). The Veteran's claim for a disability rating in excess of 40 percent for his service-connected lumbosacral strain with arthritis is denied. Finally, the disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Here, the rating criteria are not inadequate. Higher ratings are available for the service-connected disability when it is more severe; however the Veteran simply does not meet those criterions. The rating criteria already considers the Veteran pain and loss of range of motion. Furthermore, as will be addressed later in this decision, the Board is granting the Veteran TDIU. The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case. TDIU Claim The Veteran essentially contends that his service-connected disabilities have made him unable to secure and follow substantially gainful employment. The Veteran is currently service-connected for lumbosacral strain with arthritis (with a 40 percent disability rating), bilateral impairment of the sciatic nerve (with a 20 percent disability rating for each leg), and bilateral impairment of the crural nerve (with a 20 percent disability rating for each leg). He has a combined evaluation of 80 percent. A Veteran will be entitled to a TDIU upon establishing that he is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, any special training, and previous work experience in making this determination, but not to his age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19. To qualify for a total disability rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities - provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). However, even if the ratings for a Veteran's disabilities fail to meet the first two objective bases upon which a permanent and total disability rating for compensation purposes may be established, the Veteran's disabilities may be considered under subjective criteria. If the Veteran is unemployable by reason of his disabilities, occupational background, and other related factors, an extraschedular total rating may also be assigned on the basis of a showing of unemployability, alone. See 38 C.F.R. § 4.16(b). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . ." To receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this case, the Veteran is service-connected for a disability ratable at 40 percent or more; his lumbosacral strain with arthritis is rated as 40 percent disabling. Additionally, he has a combined disability rating in excess of 70 percent. As such, he meets the minimum schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). Overall, he is service-connected for lumbosacral strain with arthritis (with a 40 percent disability rating), bilateral impairment of the sciatic nerve (with a 20 percent disability rating for each leg), and bilateral impairment of the anterior crural nerve (with a 20 percent disability rating for each leg). He has a combined evaluation of 80 percent. However, the evidence must still approximate a finding that the Veteran is unable to pursue a substantially gainful occupation due to the service-connected disabilities. Thus, the issue is whether the evidence is in relative equipoise (i.e., the evidence supporting the claim and the evidence opposing the claim is approximately the same) that the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore, 1 Vet. App. at 359. For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor, which takes this case outside the norm. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In October 2009, Dr. T.S. Evans reported that the Veteran is "unable to work... primarily because of chronic osteoarthritic changes in his weight bearing joints and also a progressive weakness in his hips and quadriceps." Dr. Evans further noted that the Veteran's strength in the lower extremities was decreasing. In an August 2012 VA examination, the examiner found that the thoracolumbar spine (back) condition "precludes physically demanding occupational activities". Also, the VA examiner found that "the limited endurance for ambulation due at least in part...the lumbar spine more likely than not would so severely limit efficient ambulation as to cause him to be unable to meet work requirements in any occupation." Based on a review of the relevant evidence discussed above and giving the benefit of the doubt to the Veteran, the Board finds that the competent medical evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. There can be no doubt that further inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit-of-the-doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. As such, the Board finds that entitlement to TDIU is warranted. ORDER An evaluation in excess of 40 percent for lumbosacral strain with arthritis is denied. Entitlement to a TDIU is granted. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs