Citation Nr: 1333889 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 08-04 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine, status post left laminectomy at L4-5. 2. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity associated with degenerative disc disease of the lumbar spine, status post left laminectomy at L4-5. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to November 9, 2011. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to February 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which increased the Veteran's disability rating for his service-connected degenerative disc disease of the lumbar spine to 40 percent, effective February 1, 2003. In his February 2008 VA Form 9, the Veteran indicated that he desired a hearing before a Veteran's Law Judge (VLJ) of the Board at his local VA office. A hearing was subsequently scheduled to occur on October 18, 2011. However, the Veteran's representative indicated in an October 2011 statement that the Veteran desired to cancel the scheduled hearing and to have his file forwarded directly to the Board. Therefore, the Board considers the Veteran's request for a hearing before a Board VLJ to be withdrawn. See 38 C.F.R. § 20.704(e) (2011). In April 2012, the case was remanded to the RO via the Appeals Management Center (AMC) for further development. In a July 2013 decision, the RO granted service connection for neurological impairment associated with the Veteran's service-connected low back disability (i.e. radiculopathy, left lower extremity), assigning a 10 percent rating effective November 9, 2011 and also granted entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective November 9, 2011. FINDINGS OF FACT 1. The Veteran is shown to have at least some level of forward flexion, lateral flexion and rotation of the thoracolumbar spine; vertebral fracture, ankylosis, and incapacitating episodes are not shown. 2. The Veteran's radiculopathy has been shown to result in impairment compatible with moderately severe incomplete paralysis of the sciatic nerve throughout the appeal period; severe incomplete paralysis with marked muscle atrophy is not shown. 3. From June 25, 2003, the date the Veteran's claim for increase was received, he has met the schedular criteria for TDIU and his service-connected low back disability and left lower extremity radiculopathy precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for degenerative disc disease of the lumbar spine, status post left laminectomy at L4-5, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, (2013), 4.71a, Diagnostic Codes 5285, 5286, 5289, 5293 (2003); Diagnostic Code 5243 (2013). 2. During the entire appellate period, the criteria for a 40 percent rating, and not higher, are met for radiculopathy of the left lower extremity. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2013). 3. From June 25, 2003 to November 9, 2011, the criteria for entitlement to a TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341(a), 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and 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. See 38 C.F.R. § 3.159(b)(1). July 2003 and April 2012 letters explained the evidence necessary to substantiate the claim and VA and the Veteran's responsibilities. The letters also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the April 2012 letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After provision of these letters, the case was readjudicated by a July 2013 supplemental statement of the case. Thus, the Veteran was not prejudiced by any defect in the timing of the notice provided. With regard to the duty to assist, the claims file contains VA treatment records, private treatment records, the reports of VA examinations and the assertions of the Veteran and his representative. In particular, in accordance with the April 2012 remand, VA treatment records pertaining to the low back disability dated since February 2008 were obtained and the Veteran was afforded with a current VA examination in January 2013. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds, however, that staged ratings are not warranted here, as the degree of impairment due to the Veteran's lumbar spine disability has not varied significantly during the appeal period. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Low Back Disability The Veteran's instant claim for increase was received in June 2003. The criteria for rating back disabilities in the VA Schedule for Rating Disabilities were revised effective September 23, 2002 and September 26, 2003. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable diagnostic codes under 38 C.F.R. § 4.71a to the period on or after the effective dates of the new diagnostic codes if the prior versions were in effect during the pendency of the appeal, as is the case here. Therefore, the Board may evaluate the Veteran's service-connected low back disability under the earlier diagnostic codes and the current diagnostic codes, as of their effective dates, in order to determine which version would accord him the highest rating. The Board notes that it will consider whether the Veteran's service connected lumbar spine disability warrants a higher rating under the rating provisions applicable to intervertebral disc syndrome as he has been diagnosed with degenerative disc disease. Prior to September 26, 2003 (and subsequent to the revisions made effective September 23, 2002), the only Diagnostic Codes that would allow for assignment of a rating in excess of 40 percent for low back disability were Code 5285 for vertebral fracture, Code 5286 for ankylosis of the entire spine, Code 5289 for ankylosis of the entire spine and Code 5293 for intervertebral disc syndrome based on incapacitating episodes. Under Code 5285, a 100 percent evaluation was warranted for vertebral fracture with cord involvement, when the Veteran is bedridden or requiring long leg braces. Without cord involvement, but with abnormal mobility requiring a neck brace, a 60 percent evaluation is assigned. In other cases, the disability was rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of the vertebral body. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2002). Under Code 5286, complete ankylosis of the spine at an unfavorable angle was assigned a 100 percent rating and complete ankylosis of the spine at a favorable angle was assigned a 60 percent rating. Under Code 5289, ankylosis of the lumbar spine at an unfavorable angle was assigned a 50 percent rating and ankylosis of the lumbar spine at a favorable angle was assigned a 40 percent rating. Under Code 5293, intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months was assigned a 40 percent rating and incapacitating episodes having a total duration of at least 6 weeks during the past 12 months was assigned a 60 percent rating. These criteria remained the same effective September 26, 2003 but were simply moved to Diagnostic Code 5243. An incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. Ankylosis is generally defined as fixation of a joint in a particular position. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. Effective September 26, 2003, the Veteran's intervertebral disc syndrome, is to be evaluated either under the general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes. Under the general rating criteria, forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is assigned a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine is assigned a 50 percent rating, and unfavorable ankylosis of the entire spine is assigned a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The General Rating Formula specifies that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Note (2). Provided, however, that, 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 generally recognized by VA. Note (3). The term "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"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). Once again, the formula for rating intervertebral disc syndrome based on incapacitating episodes did not change effective September 26, 2003. Intervertebral disc syndrome manifested by such episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent evaluation; and incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In an April 1985 rating decision, the RO granted service connection for postoperative status left laminectomy, foraminotomy at L4-L5 and assigned a 20 percent rating effective June 1984. In a December 2003 rating decision, the RO increased the rating to 40 percent effective February 1, 2003. The Veteran seeks a higher rating. The evidence of record shows that over the course of the appeal period the Veteran has reported severe back pain. He has indicated that he has difficulty walking more than one block; that it is an extreme hardship for him to walk up the stairs to his apartment; that he cannot play with his child or lift the child up, cannot bend, lift or twist, cannot sit for greater than 15 minutes at any one time and cannot stand in one place for very long. He has indicated that he experiences a flare up when sitting for long periods such as riding in a van. Range of motion testing has generally shown severe limitations with forward flexion to as little as 10 degrees, extension to as little as 0 degrees, right lateral flexion to as little as 15 degrees, left lateral flexion to as little as 10 degrees and right and left rotation to as little as 20 degrees. There are no objective findings showing additional limitation of motion in any direction on repetitive use, with a January 2013 VA examiner specifically finding that range of motion was not additionally limited with repetitive use. Other objective findings have included that the Veteran uses a cane and walks with a limp; that he wears a back brace; that he sits in a tripod position, constantly using both arms to relieve pressure on his lumbar spine; that he had a notable lumbar muscle spasm; that he could not perform work that would require prolonged standing, bending, lifting or twisting; that he was unable to walk on his heels and toes when asked but was able to walk on the heel and toe during observation while walking down a hall; and that he generally had functional loss due to less movement than normal, excess fatigability, pain on movement and interference with sitting, standing and weight-bearing. In September 2009, a chairbaack lumbosacral corset was recommended to help support the back but the Veteran did not desire to receive this more specialized brace. There is no evidence or allegation that the Veteran has a vertebral fracture. Thus, there is no basis for assigning a rating in excess of 40 percent under Code 5285. Also, there is no evidence or allegation during the appeal period that the lumbar spine or any other spinal segment has actually been ankylosed. During an October 2004 VA examination, extension was found to be 0 with the Veteran hardly able to make it upright because of pain. However, he did exhibit 45 degrees of forward flexion at that time. Thus, his spine was not shown to be locked in one position (i.e. ankylosed); it was simply shown that he could not bend his spine backwards (i.e. extend it). Also, the October 2004 measurement of 0 degrees extension is an isolated finding; the other range of motion assessments during the appeal period show at least some degree of extension, along with at least some degree of motion in the other directions. Consequently, as ankylosis is also not shown nor alleged during the appeal period, a rating in excess of 40 percent is also not warranted under former Codes 5286 or 5289 or under the current General Rating formula. Similarly, the Veteran has not been shown to have incapacitating episodes having a total duration of at least 6 weeks during any 12 month time frame within the appeal period. He did report in December 2002 that his back pain back pain was so acute and powerful that he had to stay in bed most of the time. However, it is neither shown nor alleged that such bedrest was prescribed by a physician, nor is there any other evidence of record during the appeal period showing that bedrest was prescribed by a physician as a treatment for the Veteran's low back disability. Notably, the record does indicate that the Veteran received inpatient physical therapy treatments for his low back disability in December 2002, June 2003, August 2004, August 2007 and January 2008. However, he has already been awarded total, temporary 100 percent ratings for these periods of inpatient hospitalization and thus, they are not included in the existing rating period on appeal. Moreover, even during these periods, there is no indication that the Veteran was actually prescribed bedrest as a treatment for the low back disability (as opposed to him simply sleeping or resting as part of his daily routine). Instead, the evidence indicates that the treatment for his low back disability consisted of physical therapy and pain medication. Accordingly, there is no basis for assigning a rating in excess of 40 percent for incapacitating episodes under former Code 5293 or current Code 5243. On his February 2008 Form 9, the Veteran argued that he was entitled to a 60 percent rating for pronounced lumbar spine degenerative disc disease under Diagnostic Code 5293 in effect prior to September 23, 2002. However, because the Veteran's instant claim for increase was received in June 2003, this version of Code 5293 is not applicable to his claim. Consequently, the Board need not consider whether the low back disability met these rating criteria. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995). In this regard, the January 2013 VA examiner specifically found that the Veteran had at least some range of motion in all directions and did not have any additional limitation of motion on repetitive use, a finding indicating that his functional loss, characterized by the examiner as less movement than normal, excess fatigability, pain on movement and interference with sitting, standing and weight-bearing, was not equivalent to even favorable ankylosis. There are no medical findings to the contrary (i.e. findings tending to indicate that functional loss compatible with ankylosis is shown). Notably, the Veteran's own reporting does suggest a higher degree of loss of function. However, the Board finds these reports somewhat exaggerated. While the Veteran has reported an inability to bend at all, range of motion testing has shown that he is able to bend at least to a small degree and is even able to do with some level of repetition. Also, while he has reported that he could not walk on his heels or toes, he was observed doing so while walking down a hall. Accordingly, given these specific observations, to the extent they are not consistent with each other, the Board credits the objective medical findings of record over the Veteran's reports in determining the level of the Veteran's functional capacity. Accordingly, as the weight of the evidence is against assigning a rating in excess of 40 percent on a schedular or extraschedular basis, the preponderance of the evidence is against this claim and it must be denied. Gilbert, 1 Vet. App. 49, 55 (1990). Radiculopathy As noted above, in the July 2013 decision, the RO granted service connection for neurological impairment associated with the Veteran's service-connected low back disability (i.e. radiculopathy, left lower extremity), assigning a 10 percent rating effective November 9, 2011. The Veteran has not expressed satisfaction with the rating or effective date assigned and as noted above, the Veteran's claim for increase for his low back disability was received in June 2003. Thus, as the separate rating for radiculopathy secondary to the low back disability is associated with this claim, the Board must consider both whether a higher rating and/or an earlier effective date are warranted. The Board must also consider whether any impairment of the right lower extremity is shown. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5443, Note 1, indicating that neurological abnormalities associated with low back disability should be rated separately under an appropriate diagnostic code. The rating for the left lower extremity radiculopathy has been assigned under Diagnostic Code 8520. Under this Code, complete paralysis of the sciatic nerve warrants an 80 percent rating. Incomplete paralysis is assigned ratings of 10 to 60 percent, depending on the severity of the claimant's symptoms. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular muscle atrophy. A 40 percent rating is appropriate for moderately severe incomplete paralysis. Moderate incomplete paralysis warrants a 20 percent rating, and a 10 percent rating is assigned for mild incomplete paralysis. The Board notes that during an August 2004 VA history and physical, the Veteran was found to have chronic low back pain with radiation to the left side and knee with left-sided weakness. Left patellar and left Achilles reflexes were absent and the examining physician was unable to elicit any Babinski reflex at all. At a January 2008 VA history and physical, the Veteran described back pain radiating into the left lower extremity, stopping at the toes, with numbness and paresthesias. The Veteran indicated that he often had spasms in the calf muscle with pain of 10/10 in intensity. At the January 2013 VA examination, the examiner found that the Veteran's left lower extremity was characterized by severe pain, moderate paresthesias and moderate numbness and overall found that the radiculopathy was severe in degree. He also found absent reflexes at the left knee and ankle. The examiner indicated that the Veteran did not have any muscle atrophy. The examiner noted that the nerves affected by the Veteran's radiculopathy were the sciatic nerve and the femoral nerve. Examining the evidence, the Board finds that a 40 percent rating is warranted for the left lower extremity radiculopathy for the entire appeal period (i.e. from June 25, 2003) based on moderately severe incomplete paralysis of the sciatic nerve. This level of incomplete paralysis is reasonably shown based on the severe level of the Veteran's pain, the absent reflexes, and the additional sensory impairments. Severe incomplete paralysis is not shown as the Veteran has not been found to have atrophy at any time during the appeal period. Accordingly, a higher 60 percent rating is not warranted. The Board also notes that assigning an additional rating for impairment of the femoral nerve would amount to impermissible pyramiding. 38 C.F.R. § 4.14. Further, 40 percent is the highest rating available under DC 8526 pertaining to the femoral nerve; thus, it would not be more beneficial to rate the Veteran under that code. Additionally, the Veteran has not been shown to have impairment of the right lower extremity during the appeal period. In this regard, the January 2013 VA examiner specifically found that the right lower extremity was not affected by radiculopathy and there is no evidence to the contrary during the appeal period. Accordingly, a separate rating for neurological impairment of the right lower extremity associated with the Veteran's low back disability is not warranted. Extraschedular Consideration The Board has also considered whether the Veteran's claims for increase for low back disability and lower extremity radiculopathy should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. As explained above, the Veteran's low back symptomatology, including severe pain, severe limitation of motion, muscle spasm, altered gait, excess fatigability and interference with sitting, standing and weight-bearing, and the Veteran's left lower extremity symptomatology, including severe pain, sensory disturbances and absent reflexes, is fully contemplated by the pertinent diagnostic criteria. See also 38 C.F.R. § 4.40, 4.45. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of these regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). TDIU As noted above, in the July 2013 decision, the RO granted a TDIU rating effective November 9, 2011. As the Veteran's claim for increase for low back disability received on June 25, 2003 was found to encompass the Veteran's TDIU claim and as the Veteran has not expressed satisfaction with the effective date assigned for this rating, the Board must still consider whether a TDIU rating is warranted from June 25, 2003 to November 9, 2011. To establish entitlement to a TDIU, there must be an impairment so severe that it is impossible 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). Neither non-service-connected disabilities nor advancing age may be considered in the determination, but consideration may be given to the Veteran's level of education, special training, and previous work experience. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. For the purposes of this section, disabilities resulting from a common etiology are considered as one disability. Thus, with the award of an increased 40 percent rating for the Veteran's radiculopathy effective June 25, 2003, the Veteran now meets the schedular criteria for a TDIU rating, as his low back disability and his left lower extremity disability are rated as 40 percent disabling and may be considered as one disability as they stem from a common etiology. 38 C.F.R. § 4.16. Consequently, as their combined rating equals 60 percent, the Veteran is considered as having one service connected disability rated at 60 percent or more. 38 C.F.R. §§ 4.16, 4.25. Accordingly, his service-connected disabilities meet the schedular criteria for assignment of a TDIU for the entire appeal period. The evidence also reasonably shows that he is unemployable due to these service-connected disabilities. In this regard, the January 2013 VA examiner specifically found that the Veteran would not be a candidate for gainful or sedentary employment. The examiner noted that the Veteran had worked in maintenance, which required a lot of physical labor, from 1984 to 1992, at which point he had to stop working due to his back and leg pain. The examiner also noted that the Veteran has only a high school diploma and some technical school training. Thus, his acquired job skills did not transfer to other occupations. Additionally, he was not a candidate for a sedentary position given that he was unable to sit for a long period of time. As the Veteran has exhibited this general level of disability throughout the appeal period and as his past work experience and educational level has remained static, the Board finds that he was unemployable due to the service-connected disabilities throughout the appeal period. Accordingly, an award of a TDIU rating is warranted from June 25, 2003 to November 9, 2011. ORDER A rating in excess of 40 percent for degenerative disc disease of the lumbar spine, status post left laminectomy at L4-5 is denied. From June 25, 2003, a 40 percent but no higher rating is granted for radiculopathy of the left lower extremity, subject to the regulations governing the payment of monetary awards. From June 25, 2003 to November 9, 2011, a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs