Citation Nr: 1340240 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 09-26 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to increased ratings for degenerative disc disease of the lumbar spine, rated as 20 percent disabling prior to July 2, 2010, and as 40 percent disabling as of that date. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1966 to September 1969. These matters comes before the Board of Veterans' Appeals (Board) by an order from the United States Court of Appeals for Veterans Claims (Court), dated June 2013, that granted a Joint Motion for Partial Remand, vacated the Board's October 2012 denial of an increased ratings claim for lumbar spine disability, and remanded the case for compliance with the terms of the joint motion. In the Joint Motion, the parties agreed that the Board failed to consider whether the evidence of record raised a claim for a total disability rating due to individual unemployability (TDIU). In Rice v. Shinseki, the Court held that a TDIU rating claim is part of an increased rating claim when such claim is raised by the record. See Id., 22 Vet. App. 447, 453 (2009). During a February 2009 VA examination, the Veteran reported that he was no longer able to work, in part, because of the severity of his lumbar spine disability. Given the Veteran's statement and the medical evidence of record, an issue of TDIU has been raised by the record. Thus, the issues on appeal are as noted on the title page. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. Prior to July 2, 2010, the Veteran's degenerative disc disease of the lumbar spine was manifested by not more than forward flexion of the thoracolumbar spine limited to 55 degrees; there is no favorable or unfavorable ankylosis of the thoracolumbar spine or unfavorable anklyosis of the entire spine nor has there been incapacitating episodes lasting at least 4 weeks during the past 12 months. 2. As of July 2, 2010, the Veteran's degenerative disc disease of the lumbar spine has been manifested by not more than forward flexion of the thoracolumbar spine limited to 30 degrees; there is no unfavorable anklyosis of the thoracolumbar spine or of the entire spine nor has there been incapacitating episodes lasting at least 6 weeks during the past 12 months. 3. When viewed in the light most favorable to the Veteran, the evidence demonstrates that his service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW 1. The criteria for a rating higher than 20 percent prior to July 2, 2010, and higher than 40 percent as of that date, for degenerative disc disease of the lumbar spine are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5243 (2013). 2. The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.156, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the Veteran filed this claim for an increased rating for his low back on November 28, 2007. Prior to the issuance of the rating decision in December 2008, the RO sent the Veteran a letter in July 2008 advising him of the elements required to support a claim for increased evaluation for a service-connected disability and of the respective duties of VA and the claimant in obtaining supporting evidence. The Veteran was provided notice with respect to the effective-date element of a claim at that time. The Board acknowledges that the Veteran has not received notice on how to substantiate a claim for entitlement to TDIU at any point. However, given the favorable resolution of the claim below, the Board finds that the Veteran is not prejudiced at this time. The record also reflects that all pertinent, available treatment records have been obtained. Social Security Administration records were previously requested in 2005 and have been deemed unavailable. The Veteran was scheduled but failed to report for an examination in September 2008. However, the Veteran was afforded a subsequent examination in July 2010. The examination report shows that the examiner considered the Veteran's medical history and reviewed the Veteran's claims folder in connection with the examination. This examination report includes relevant objective findings sufficient to rate the Veteran's back disability under the applicable rating criteria. Accordingly, the examination is adequate for rating purposes. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Board accordingly finds that any procedural errors on the originating agency's part were insignificant and non-prejudicial. Accordingly, the Board will address the merits of the Veteran's claim. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Lumbosacral spine disorders are to be evaluated under the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242. Intervertebral disc syndrome (IVDS) will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A rating of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable anklyosis of the entire thoracolumbar spine. Unfavorable anklyosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable anklyosis of the entire spine warrants a 100 percent rating. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating requires that the disability be productive of incapacitating episodes having a total duration of at least four but less than six weeks per year. Finally, a maximum 60 percent rating is available when the condition is manifested by incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. Under Diagnostic Code 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 5. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. In this regard, the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service connection was granted for lumbosacral strain in September 2007 and a 20 percent rating was assigned for the disability at that time. The Veteran filed his current claim on November 28, 2007. VA and private treatment records show considerable treatment for low back pain during the period on appeal. The Veteran was afforded a VA examination in February 2009 by a physician assistant who reviewed the claims folder and medical records prior to the examination. The examiner noted that the post military treatment records showed chronic ongoing low back pain, and X-rays and MRI in 2000 revealed degenerative disc disease of the lower lumbar spine. MRI showed degenerative disc disease at L4-5 with facet arthropathy at L4-5 and L5-S1. Since the last examination in June 2007, treatment records showed ongoing complaints of pain without evidence of exacerbating or incapacitating episodes. There was back pain with bilateral buttock pain at a constant 8 or 9 out of 10. He felt his pain would be 10+ if he did not take his current regimen of Tylenol # 3 and Codeine, Motrin and a TENS unit. He denied incapacitating episodes with bedrest orders by a physician in the last 12 months. He denied bladder or bowel dysfunction related to his back. He felt he could not stand for more than 5 minutes, walk more than 20 to 30 feet or do any bending, lifting or twisting. He lives with his 15 year old son who does all the chores. His daughter does the heavy shopping for him. He drives. His son helps with shoes and socks as needed but he can still perform his activities of daily living (ADLs) without assistance. He had been unemployed since 1991 and was medically retired due to his back and other problems. On examination, he had a slow antalgic gait. He covered a distance of 50 feet without evidence of limitation or discomfort and without assistive devices. He sat comfortably in the chair at a 90 degree angle and could rise in and out of the chair and transfer to the table without evidence of pain or difficulty. Range of motion testing disclosed flexion 0 to 55 degrees, extension 0 to 10 degrees, right and left lateral flexion to 30 degrees and left and right rotation to 20 degrees. He complained of pain with all movements. There was no evidence of spasm, weakness, fatigue or incoordination after three repetitions. Straight leg raise produced no radiculopathy in the legs. There was average muscle tone and bulk in the back and lower extremities. There was no sensory or motor loss noted. There was no footdrop or leg weakness on walking. No flares were witnessed therefore additional functional loss could not be determined without resort to speculation. In March 2009, the Veteran submitted a Wisconsin Department of Workforce Development Medical Examination and Capacity Evaluation, which was performed by Lakeshore Medical Clinic in July 2008. It was noted that the Veteran was unable to work because he was permanently disabled due to medical conditions to include severe neck and back pain. The Veteran submitted a completed questionnaire from P. R. DO, which also noted his severe neck and back pain resulted in total and permanent disability. Additional records were thereafter obtained from the Milwaukee VA Medical Center showing continued complaints of back pain. Examination of the thoracic spine in July 2009, found decreased range of motion with moderately acute tissue reaction. A consultation was prepared for Physical Therapy, but the Veteran failed to appear for an August 2009 appointment. In October 2009, it was recorded that the Veteran was refusing any physical therapy for muscle aches. In December 2009, it was indicated that the Veteran reported that his low back pain was under fair control with current regimen and that symptoms were intermittent. An RO hearing was scheduled in April 2010, but the Veteran elected to have an informal conference. He described low back pain and resulting limited motion. He reported that he was not receiving any care from non-VA medical professionals. An additional VA examination was conducted on July 2, 2010, with the claims file and past medical history reviewed thoroughly by the examining physician. The Veteran complained of back with pain a severity of 7 or 8 on a pain scale of 0 to 10. Pain interfered with all of his ADLs. Flare-ups were reported to occur at least once or twice a month and these resulted in the Veteran being confined to bed. The Veteran continued to use medication, heat, and a TENS unit. He indicated that he could only walk one block and stand for 10-15 minutes before having severe pain. There were no bladder or bowel issues. On physical examination of the lower back, there was no swelling or inflammation of the paravertebral muscles. The Veteran could only forward flex to 30 degrees. Extension was 0 degrees, lateral bending was 15 degrees bilaterally, and lateral rotation was 10 degrees bilaterally. Three times repetition of range of motion did not change these findings. Straight leg raise was positive at 20 degrees. Motor examination was normal. The Board finds at this point that the evidence above does not show entitlement to a rating higher than 20 percent for the low back for the period up to July 2, 2010. While the Veteran contends that he has severe limitations and pain, the findings on examination and treatment records indicate that he fails to meet the criteria for more than a 20 percent rating. The Veteran could flex forward to 55 degrees and he did not demonstrate any other deficit that would warrant an evaluation in excess of 20 percent. None of the criteria for a higher rating are met or more nearly approximated during the period in question. The evidence does not show limitation of forward flexion of 30 degrees or less and there is no favorable or unfavorable anklyosis of the thoracolumbar spine as contemplated by a higher evaluation on the general formula for rating diseases and injuries of the spine prior to July 2, 2010. Finally, there is no evidence of incapacitating episodes occurring at least 4 weeks but less than 6 weeks in a 12 month period as contemplated by a higher evaluation under the formula for rating intervertebral disc syndrome prior to July 2, 2010. The Board now turns its attention to the period beginning July 2, 2010. On review of the evidence above relating to symptoms and impairment from July 2, 2010, the Board finds the criteria for a rating in excess of 40 percent are not met. In this regard, while the July 2, 2010, examination revealed limited flexion of the thoracolumbar spine to 30 degrees, the record does not show unfavorable anklyosis of the entire thoracolumbar spine as contemplated by a higher rating. It is uncontroverted that the Veteran has not demonstrated unfavorable anklyosis of the entire thoracolumbar spine, or anklyosis to any degree at any time during the appeal. The Veteran does receive medication for his low back disability. However, the Board notes that the complaints do not in and of themselves suggest that the criteria for a rating in excess of 40 percent are met. None of the criteria for a higher rating are met or more nearly approximated during the period in question. Finally, there is no evidence of incapacitating episodes occurring at least 6 weeks during a 12 month period as contemplated by a higher rating based on incapacitating episodes. The Board has considered the Veteran's assertions. To the extent that the Veteran urges that he has had increased problems with his back that exceed the currently assigned ratings, the Board finds him not credible as this is inconsistent with objective evidence of record which shows he does not meet the specific criteria for an increased rating. In this regard, the Board acknowledges that the post service treatment records for the period on appeal show that he complained of back pain and that he was given medication on an ongoing basis. However, the record does not show that he ever demonstrated the specific criteria for a rating in excess of 20 percent prior to July 2, 2010, or the criteria for a 40 percent rating thereafter. Of note is the vagueness and somewhat exaggerated nature of the Veteran's contentions, and the fact that the VA examiner in 2009 noted that the Veteran appeared more physically capable when he was not performing testing, such as when he sat, transferred to a table and walked in excess of his stated limitations. Also, it is noted that he was not fully cooperative in his treatment inasmuch as he refused physical therapy as noted in the above discussion. For these reasons, the Board finds the Veteran's assertions that his disability is more limiting than shown on objective testing to be not credible. The Board has considered whether additional compensation is warranted under the DeLuca factors. In this case, VA examiners have consistently found no additional limitation of function due to pain, weakness, fatigability or incoordination warranting a higher rating. There is no reduced range of motion after repetitive motion shown in the examinations. The Board concludes that a higher rating based on those factors is not warranted. The Board has considered staged rating and notes that they have been awarded where applicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the degree of impairment present is specifically contemplated by the schedular criteria. The Veteran's service-connected lumbar spine disability is manifested by signs and symptoms such as pain, stiffness, weakness, and lack of endurance, which impairs his ability to stand and walk for long periods. (See, e.g., February 2009 and July 2010 VA examination reports). These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the spine provide disability ratings on the basis of limitation of motion. See 38 C.F.R. § 4.71a, general rating formula for rating diseases and injuries of the spine (providing ratings on the basis of anklyosis and limited of spine motion). For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011). In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by impairment in standing and walking for long periods. In short, there is nothing exceptional or unusual about the Veteran's lumbar spine disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet.App. at 115. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. In reaching this decision the Board has considered the doctrine of reasonable doubt but it is inapplicable because the preponderance of the evidence is against the claim. Total Disability Rating Due to Individual Unemployability (TDIU) As noted above, the claim for TDIU has been raised by the evidence of record as part and parcel to his claim for increase rating for lumbar spine disability received in November 2007. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "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." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." See 38 C.F.R. § 4.16(a). The Court noted the following standard announced by the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. See Moore, 1 Vet. App. at 359. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). A total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability 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 he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment cause by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. As was discussed above, TDIU may be awarded on a schedular or extraschedular basis. In this case, only the schedular basis need be considered. The Veteran's service-connected disabilities are: bilateral pes planus, rated as 50 percent disabling; lumbar spine disability, rated as 20 percent disabling prior to July 2, 2010, and thereafter as 40 percent disabling; radiculopathy in the left lower extremity, rated as 10 percent disabling; and radiculopathy in the right lower extremity, rated as 10 percent disabling. The Veteran's combined disability rating is 70 or higher percent; therefore, he meets the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). The question thus becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a). For reasons stated immediately below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. The Veteran claims that he is no longer employable because of the severity of his service-connected disabilities, and in particular, because of his lumbar symptomatology. The Veteran reported that he was medically retired in 1991 from his employment as a tractor trailer driver. The Board finds that the when viewed in the light most favorable to the Veteran, the evidence is at least in equipoise that he is unable to obtain or maintain substantially gainful employment because of totality of his occupational impairment due to service-connected disabilities. In this regard, the Board acknowledges that a review of the Veteran's VA medical records show that he has also reported he has other significant non-service connected disabilities that affect his ability to work, including congestive heart failure, diabetes mellitus, glaucoma, asthma, neck pain and shoulder pain. See the report of a February 2009 VA examination report as well as VA treatment records. However, the medical evidence record also demonstrates that the Veteran is significantly limited by his service-connected disabilities, and in particular, his lumbar spine and bilateral pes planus disabilities. As noted above, the Veteran's lumbar spine disability results in pain, stiffness, weakness, and lack of endurance. Pertinently, the July 2008 Wisconsin Department of Workforce Development Medical Examination and Capacity Evaluation reflects a medical finding that the Veteran is unable to work because he was permanently disabled due to medical conditions, to include severe back pain. In this report, it was noted that because of his severe back pain the Veteran was unable to lift or carry weight, he could only stand or walk for a maximum of 10 to 15 minutes, and he was only able to sit for a maximum of 60 minutes. It was noted that the Veteran was unable to bend, stoop, push or pull because of physical limitations. There is no contrary medical opinion of record. Also, the medical evidence shows that the Veteran's bilateral pes planus disability is manifested by pronounced impairment that causes him significant mobility limitations. See October 2010 medical statement and physician questionnaire by his treating VA podiatrist. Although the record demonstrates that the Veteran has non service connected disabilities that impact his ability to obtain and maintain substantial employment, the Board cannot ignore the lay and medical evidence that demonstrates the Veteran's service connected disabilities significantly impact his ability to engage occupational activities that would require prolonged standing, walking, sitting, or require lifting. In addition, the evidence of record does not demonstrate that the Veteran has experience with less rigorous or sedentary employment. Given the evidence of record regarding the severity of the Veteran's service-connected pes planus and lumbar spine disabilities and their impact on his mobility, and the other evidence of record indicating the Veteran's employment history, the Board finds that entitlement to a TDIU is warranted. Accordingly, the Veteran's appeal of this issue is granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 20 percent prior to July 2, 2010, and thereafter in in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. A total disability rating due to individual unemployability (TDIU) is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs