Citation Nr: 1302245 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-12 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent prior to December 1, 2009, and in excess of 40 percent thereafter, for lumbar spine degenerative joint disease. 2. Entitlement to a separate rating for right lower extremity radiculopathy prior to January 21, 2010. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from May 1956 to May 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issues on the title page have been recharacterized to reflect: 1) that the Veteran was awarded a 40 percent evaluation for right lower extremity radiculopathy in an August 2010 rating decision; and 2) that the evidence reasonably raises the issue of TDIU. The Veteran was scheduled for a Travel Board hearing in September 2010. He withdrew his request in October 2010. FINDINGS OF FACT 1. Prior to December 1, 2009, the Veteran's lumbar spine disability manifested with pain and forward flexion to no less than 60 degrees, including upon repetitive motion; and without ankylosis, incapacitating episodes due to intervertebral disc syndrome (IVDS), or neurological involvement of the left lower extremity. 2. From December 1, 2009, the Veteran's lumbar spine disability manifested with pain and favorable ankylosis; and without any incapacitating episodes due to IVDS or neurological involvement of the left lower extremity. 3. Prior to September 8, 2009, right lower extremity radiculopathy manifested with pain, mild sensory loss, and mildly diminished muscle strength. 4. From September 8, 2009, right lower extremity radiculopathy manifested with foot drop. 5. The criteria for TDIU are met. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent prior to December 1, 2009, and in excess of 40 percent thereafter, for lumbar spine degenerative joint disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237 (2012). 2. The criteria for a separate rating of 20 percent for right lower extremity radiculopathy prior to September 8, 2009, and a rating of 40 percent thereafter, have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §38 C.F.R. § 4.71a, 4.124a, DC 8520 (2012). 3. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A letter sent in August 2006 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in January 2008, April 2010 and February 2012; the Veteran has not argued, and the record does not reflect, that these examinations are inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486. A. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Under the General Rating Formula for Diseases and Injuries of the Spine, the disability is evaluated 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. A 20 percent rating requires thoracolumbar spine forward flexion 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormality is to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5237, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, DC 5237, Note 2. All measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, DC 5237, Note 4. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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. 38 C.F.R. § 4.71a, DC 5237, Note 5. The Veteran is diagnosed with degenerative disc disease. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note 1: For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 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). The rating schedule provides guidance for separately rating neurologic impairment. See Note (1) of the General Rating Formula of Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Ratings for paralysis of the sciatic nerve are set forth at 38 C.F.R. § 4.124A, DC 8520. A 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, DC 8520. Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and DC 8720 refers to neuralgia of the sciatic nerve. The term "incomplete paralysis," with this and other peripheral nerve injuries, 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, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. Analysis Prior to December 1, 2009, the Veteran's lumbar spine degenerative joint disease is rated as 20 percent disabling. In the February 2008 rating decision on appeal, the RO awarded the Veteran a temporary total evaluation for his lumbar spine disability from November 20, 2007, to December 31, 2007. As a total rating was in effect for this period, entitlement to a higher rating during this period is moot. In an August 2010 rating decision, the RO awarded the Veteran a temporary total evaluation for his lumbar spine disability from August 4, 2009, to November 30, 2009. As a total rating was in effect for this period, entitlement to a higher rating during this period is moot. The claims file does not contain VA treatment records for the period prior to December 1, 2009. Private medical records show ongoing complaints of chronic low back pain, with radiation into the right lower extremity, and findings of degenerative disc disease. The Veteran sought treatment at an emergency room for low back pain with involvement of the right lower extremity in September 2006. Objectively, paralumbar spasm and tenderness were present on the right side. He was diagnosed with acute sciatica and acute low back pain. At a January 2008 VA spine examination, the Veteran described significant low back pain that was worse with walking and standing. He reported occasional flare-ups, with a 25 percent reduction in function. He denied any periods of incapacitation over the last 12 months. He had numbness on his right great toe. He reported good bowel and bladder control. A cane had been used for the past 3 years, with no history of falls. On physical examination, he was noted to have mild discomfort with walking, and a slightly stooped posture. His gait was slow, cautious, and slightly wide-based. He could walk tandem for a few steps and walk without his cane. Lumbar forward flexion was possible to 70 degrees and extension was to 5 degrees. Lateral flexion and lateral rotation were each to 20 degrees, bilaterally. Upon repeated testing of the spine, forward flexion was from 0 to 60 degrees, with mild spasm. There was no additional change in motion or functional limitations noted with respect to the other ranges of motion. There was no ankylosis of any kind. X-rays revealed normal lumbar spine alignment with moderate discogenic changes and facet degenerative joint disease. The examiner's diagnosis was degenerative joint disease, lumbar spine. On the Veteran's April 2009 VA Form 9, he stated that he lived in constant pain from his degenerative joint disease and this pain diminished his quality of life. He indicated that he was unable to walk, exercise, or participate in outdoor activities because of his disability. A July 2009 record from the Veteran's treating physician and surgeon reflects a clinical impression of spondylolisthesis at L5-S1, unstable, with right lumbosacral radicular complaints status post five previous surgeries. This record also indicates the Veteran was using a back brace. The next highest rating under DC 5243 is 40 percent and requires evidence of either forward flexion of the thoracolumbar spine to 30 degrees or less or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, DC 5243. Prior to December 1, 2009, the only measurements for the lumbar spine range of motion are reflected in the January 2008 VA examination report. That report showed forward flexion was possible to 70 degrees, although motion was limited to 60 degrees on repetition. Even with consideration of the DeLuca principles, lumbar flexion did not more closely approximate 30 degrees or less. The evidence fails to show any ankylosis. Accordingly, the criteria for a higher rating of 40 percent are not met under the general formula. Alternately, a showing of IVDS with incapacitating episodes having a total duration of at least 4 weeks during the past 12 months would warrant a 40 percent rating under DC 5243. There is no evidence of physician-prescribed bed rest for a period of at least 4 weeks at any time during the appeal period in question. A higher rating may not be assigned under DC 5243 on the basis of incapacitating episodes. As of December 1, 2009, the Veteran's lumbar spine degenerative joint disease is rated as 40 percent disabling. VA outpatient treatment records dated in December 2009 show continued complaints and treatment of chronic low back pain. At an April 2010 VA spine examination, the Veteran described having constant and severe back pain, on a daily basis. The pain worsened with prolonged sitting or standing. He denied incapacitating episodes. He reported symptoms of fatigue, decreased motion, stiffness, weakness, and spasms. The pain was located in the central back and to the right. He ambulated with a cane and could walk up to a quarter mile. On physical examination, posture was normal. His gait was antalgic and a cane was used. Favorable thoracolumbar spine ankylosis was present (the spine was in a neutral position). Forward flexion was possible to 15 degrees and extension was possible to 3 degrees. Lateral flexion and lateral rotation were each to 5 degrees, bilaterally. There was evidence of pain on active range of motion. The only additional limitation following repetitive use was increased pain; there was no additional loss of motion. The examiner's diagnosis was lumbar spine degenerative disc disease with associated right lower extremity severe L4-5 radiculopathy. The examiner indicated that the Veteran had been unemployed since 2006 due to his back problem. This disability had significant effects on his occupational activities and activities of daily living. To merit a disability rating in excess of 40 percent, either unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine must be shown. The April 2010 VA examination shows favorable ankylosis. There is no evidence of unfavorable ankylosis of the entire thoracolumbar spine or, of the entire spine, at any time during this appeal period. For this reason, the criteria for a rating higher than 40 percent are not met under the general formula. Alternately, a showing of IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a 60 percent rating. There is no evidence of physician-prescribed bed rest for a period of at least 6 weeks at any time during the appeal period in question. Accordingly, a rating higher may not be assigned under DC 5243 on the basis of incapacitating episodes. The preponderance of the evidence is against the claim for a rating in excess of 20 percent prior to December 1, 2009 and a rating in excess of 40 percent thereafter, for lumbar spine degenerative joint disease; there is no doubt to be resolved; and an increased rating is not warranted. The rating criteria provide for separate ratings for neurologic and orthopedic manifestations. See Note (1) of the General Rating Formula of Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. In an August 2010 rating decision, the RO awarded a separate disability rating for radiculopathy of the right lower extremity associated with lumbar spine degenerative joint disease. An initial rating of 40 percent was assigned, effective January 21, 2010. Private medical records show ongoing complaints of chronic low back pain, with radiation into the right lower extremity, as early as September 2005. The Veteran was diagnosed with sciatica at that time based on his complaints, and was treated with epidural blocks. These records reflect that he underwent many surgeries for his radicular pain, including: a right L5-S1 neuroforaminotomy in September 2005; re-exploration of the right L5-S1 neuroforaminotomy and lateral recess decompression and a right L4-5 lateral recess decompression in December 2006; a re-exploration of the right L5-S1 decompression for neural foraminal stenosis in February 2007; and a re-exploration of the right L4-5 lumbar microdiskectomy and right L5-S1 neuroforaminotomy and lumbar microdiskectomy in November 2007. The records further indicate that the Veteran's pain abated for a short time following his surgeries, but generally returned after a few months. Of note is a June 2006 treatment note which shows the Veteran reported right radicular pain with onset in August 2005 status post back surgery in 2003. The pain was fairly sharp and constant in nature. The pain mostly involved the lateral part of his leg and down into the foot. Objectively, he had a positive Patrick's test on the right, negative on the left. Motor strength was 4/5 on the right and 5/5 on the left. Straight leg raise was negative, bilaterally. The diagnosis was post-laminectomy syndrome; right SI joint dysfunction. The Veteran sought treatment at an emergency room for acute sciatica in September 2006. He described the symptoms as involving his lower right leg, ankle, buttocks, foot and upper leg. Range of motion was full and capillary refill was intact; skin temperature was warm to touch. He reported use of a cane to relieve pressure when walking. He denied bowel and bladder incontinence. Neurologic examination revealed sensorimotor examination was non-focal. Dorsiflexion at the great toe was normal, bilaterally. Deep tendon reflexes were symmetric. An October 2006 treatment note shows a positive straight leg raise; diminished ankle jerk on the right as compared to the left; normal patella reflexes; no atrophy; and muscle strength of 5/5 in all muscle groups. The diagnosis was lumbar degenerative disc disease and lumbar radiculopathy. A December 2006 treatment note shows a complaint of right hip and leg pain, extending to the right big toe and second digit. The note indicates that a MRI scan, myelogram, and post-myelogram CT scan in May 2006 revealed a longstanding defect about the pedicle at L5, on the right. On objective examination, the iliopsoas, quadriceps, tibialis, anterior, extensor hallucis longus, and gastrocnemius were 100/100. Deep tendon reflexes were 2-/2- with respect to ankle jerk and 1/1 for knee jerk. Sensation was intact to pinprick in each lower extremity. The diagnosis was right lumbosacral radiculopathy. At a January 2008 VA spine examination, the examiner stated that there was no evidence of sciatica. Lower extremities showed normal muscle bulk, tone, and power. Knee and ankle jerk reflexes were 1+ bilaterally. Plantars were flexor, and the Veteran could move his toes and ankles. Motor strength was 5/5 bilaterally. Mild sensory loss was noted over the right great toe. The Veteran underwent a pedicle screw fixation unilateral with transforaminal lumbar interbody fusion (TLIF) procedure in August 2009. Subsequent notes reflect that following this surgery, his sciatic pain abated, except for pain about the right hip. However, on examination on September 8, 2009, he was found to have no significant tibialis anterior function on the right; function was normal on the left. He was diagnosed with right foot drop and given a cock splint for use with his right foot. He was noted to be using a brace and a cane as well. At an April 2010 VA spine examination, the Veteran described pain that was located in the central back and to the right. It radiated to the right leg, and felt sharp, burning, and cramping in nature. He ambulated with a cane and could walk up to a quarter mile. He denied bowel and bladder dysfunction. Objective neurologic test results showed normal (5/5) hip and knee flexion and extension, bilaterally. Ankle dorsiflexion and plantarflexion were 4/5 on the right and 5/5 on the left. Great toe extension was 4/5 on the right and 5/5 on the left. Muscle tone was normal. Vibration, pain, light touch, position sense were normal (2/2) in the left lower extremities and were diminished on the right. The right lower extremity was abnormal with sensory loss over the L4-5 dermatome. Reflex examination showed knee and ankle jerks were 3+ bilaterally; plantarflexion was normal bilaterally. The examiner's diagnosis was lumbar spine degenerative disc disease with associated right lower extremity severe L4-5 radiculopathy. The private medical records are replete with the Veteran's competent and credible complaints regarding the radicular pain affecting his right lower extremity, despite the January 2008 VA examiner's finding that there was no evidence of sciatica. There are reports from clinical evaluations with MRI and CT scans confirming radiculopathy and involvement of the sciatic nerve in the right lower extremity, as well as evidence of objective neurological deficits. Motor strength was 4/5 on the right on private evaluation in June 2006; ankle jerk was diminished on private evaluation in October 2006; and there was mild sensory loss noted over the right great toe at the January 2008 VA examination. The evidence supports the assignment of a separate 20 percent rating for moderate incomplete paralysis of the sciatic nerve of the right lower extremity from the date of claim. 38 C.F.R. § 4.124a, DC 8520; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This rating is assigned for the entire appeal period prior to September 8, 2009. An even higher rating is not warranted for this period as the objective clinical findings relative to his radiculopathy do not reflect more serious neurologic impairment, such as atrophy, absent sensation, foot drop, or significant muscle or motor weakness. The Board is assigning a 40 percent rating for the period beginning September 8, 2009, because it is from this date that the clinical records reflect evidence of right foot drop requiring use of a foot splint and brace. An even higher rating is not warranted for this period as the objective clinical findings relative to the right leg radiculopathy do not reflect more serious neurologic impairment, such as marked muscular atrophy, or significant muscle or motor weakness. It is significant to note that despite the presence of right foot drop, the April 2010 VA examination showed hip and knee flexion and extension were normal bilaterally. Ankle dorsiflexion, plantarflexion, and great toe extension were diminished, but not absent. Vibration, pain, light touch, position sense were also diminished, but not absent. Muscle tone and plantarflexion were normal. The evidence demonstrates that a separate 20 percent rating for moderate right leg radiculopathy is warranted from the date of claim to September 8, 2009; and a separate 40 percent rating for moderately-severe right leg radiculopathy is warranted from September 8, 2009. No other neurological abnormalities associated with the service-connected lumbar spine condition have been shown by the evidence. The Board has also considered whether the Veteran is entitled to an extraschedular evaluation. 38 C.F.R. § 3.321. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The rating criteria adequately contemplate the manifestations of the Veteran's lumbar spine disability and right lower extremity radiculopathy. The disabilities are productive of pain, limited motion, and moderate to moderately severe neurologic involvement of the right lower extremity only. These manifestations are contemplated in the pertinent rating criteria and are adequate to evaluate the Veteran's disabilities. Referral for consideration of extraschedular rating is not warranted. B. TDIU When evidence of unemployability is submitted during the course of an appeal for an increased rating, then a claim for a TDIU will be considered as part of that increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has reported that he left his job due to his service-connected back disability. A claim for a TDIU is raised by the evidence of record, and is currently before the Board on appeal as part and parcel of his increased rating claim. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the total rating is based on a disability or combination of disabilities for which the Schedule of Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Analysis The Veteran is currently service-connected for lumbar spine degenerative joint disease, rated 40 percent disabling; radiculopathy of the right lower extremity associated with lumbar spine degenerative joint disease, rated 40 percent disabling; hypertension, rated 10 percent disabling; degenerative joint disease with hip and knee involvement, rated 0 percent disabling; status post removal scalp lipoma, rated as 0 percent disabling; and appendectomy scar, rated 0 percent disabling. The Veteran meets the schedular requirements for a TDIU. On a TDIU application dated in October 2011, the Veteran stated that he stopped working in October 2006 due to his back disability. He had been employed as a security guard. The application shows that he completed two years of college and had no other training or education. At an April 2010 VA spine examination, a VA examiner indicated that the Veteran had been unemployed since 2006 due to his service-connected lumbar spine degenerative disc disease with associated right lower extremity severe L4-5 radiculopathy. The examiner opined that this disability had significant effects on the Veteran's occupational activities and activities of daily living. The Veteran was afforded a VA examination in February 2012 specifically to address his employability. He denied that his inability to work was related to any service-connected disability other than his lumbosacral spine, or to any nonservice-connected disability. He reported that his back and right lower extremity pain was severe. He also required use of a cane and a foot brace for ambulation. Following a review of the file and in-person interview, the examiner opined that the Veteran was unable to secure or follow a substantially gainful occupation due to his lumbar spine disability and right lower extremity radiculopathy. The examiner further stated that the Veteran is fully unemployable for physical or sedentary labor due to the condition of his spine and right lower extremity. There is no evidence against the claim and TDIU is warranted. ORDER A disability rating in excess of 20 percent prior to December 1, 2009, and in excess of 40 percent thereafter, for lumbar spine degenerative joint disease, is denied. Entitlement to a separate 20 percent rating for the right lower extremity radiculopathy from the date of claim to September 8, 2009; and a separate 40 percent rating for right lower extremity radiculopathy from September 8, 2009, is granted. A TDIU is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs