Citation Nr: 1804765 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-19 977A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for thoracic strain and lumbar degenerative disc disease (DDD). 2. Entitlement to a separate initial compensable rating for radiculopathy of the right lower extremity from September 29, 2010, to February 3, 2013 3. Entitlement to a separate initial compensable rating for radiculopathy of the left lower extremity from September 29, 2010, to February 3, 2013 4. Entitlement to a separate initial rating in excess of 10 percent for radiculopathy of the right lower extremity from February 3, 2013. 5. Entitlement to a separate initial rating in excess of 10 percent for radiculopathy of the left lower extremity from February 3, 2013. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jan D. Dils, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1983. These matters came to the Board of Veterans' Appeals (Board) on appeal from a rating decision in August 2011, which granted service connection for a thoracolumbar spine disability, assigning a rating of 20 percent effective September 29, 2010. The Veteran timely appealed the initial rating assigned. In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims file. The Board notes that in September 2015, the RO granted a separate 10 percent rating for right and left radiculopathy of the lower extremities, effective February 3, 2013. While the Veteran has not appealed the decision, the Board notes that radiculopathy is a neurological disability that is part and parcel of a back disability, as discussed in more detail below. As such, the Board will also address the issue of a separate disability rating for the right and left radiculopathy of the lower extremities prior to this date in its decision. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). In addition, the Board finds that the issue of entitlement to a TDIU had been raised by the record under Rice v. Shinseki, 22 Vet. App. 47 (2009), and will also address this issue in its decision. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the symptoms of the Veteran's lumbar spine disability more nearly approximate flexion to 30 degrees, but do not include or involve ankylosis or incapacitating episodes. 2. From September 29, 2010, to February 3, 2013, the evidence is in relative equipoise as to whether symptoms of the Veteran's radiculopathy of the right lower extremity more nearly approximated mild severity, but the preponderance of the evidence reflects that they did not more nearly approximate moderate severity. 3. From September 29, 2010, to February 3, 2013, the evidence is in relative equipoise as to whether symptoms of the Veteran's radiculopathy of the left lower extremity more nearly approximated mild severity, but the preponderance of the evidence reflects that they did not more nearly approximate moderate severity. 4. From February 3, 2013, the evidence reflects that Veteran's radiculopathy of the right lower extremity more nearly approximates mild severity, but the preponderance of the evidence reflects that it does not more nearly approximate moderate severity. 5. From February 3, 2013, the evidence reflects that Veteran's radiculopathy of the left lower extremity more nearly approximates mild severity, but the preponderance of the evidence reflects that it does not more nearly approximate moderate severity 6. The evidence reflects that the Veteran's service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial rating of 40 percent, but no higher, is warranted for his lumbar spine disability. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5243 (2017). 2. With reasonable doubt resolved in favor of the Veteran, from September 29, 2010, to February 3, 2013, the criteria for a separate, initial rating of 10 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.124a, DC 8520 (2017). 3. With reasonable doubt resolved in favor of the Veteran, from September 29, 2010, to February 3, 2013, the criteria for a separate, initial rating of 10 percent, but no higher, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.124a, DC 8520 (2017). 4. From February 3, 2013, the criteria for an initial rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.4.124a, DC 8520 (2017). 5. From February 3, 2013, the criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity have been not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.4.124a, DC 8520 (2017). 6. With reasonable doubt resolved in favor of the Veteran, the criteria for an award of TDIU on a schedular basis pursuant to 38 C.F.R. §4.16(a) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Higher Initial Ratings Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's service-connected lumbar spine disability has been rated in accordance with the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, DC 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine, forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. 38 C.F.R. § 4.71a. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, in relevant parts, Note (1) instructs to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under current provisions for rating intervertebral disc syndrome (IVDS), IVDS (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine as noted above, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243 (2017). For evaluation of IVDS, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is assignable. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable. Id. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. VA treatment records in October 1998 reflect that the Veteran had magnetic resonance imaging (MRI) done by a neurosurgeon that showed bulging in the lower back. The physician noted that the Veteran had radiculopathy and was awaiting back surgery. Records in December 1998 document that the Veteran experienced decreased pain in the back with radiation in the left leg for three months. An August 2011 VA examination report reflects that the Veteran underwent a discectomy in 1995, which helped for a little bit. He denied bowel of bladder incontinence and did not wear a back brace. He stated that he was told to lie in bed for one month by Dr. F, but the examiner noted that there was no confirmation of this in the records. The Veteran stated that the pain radiated to his left thigh on an intermittent basis, and that there was no right side radiation or extremity weakness. He used a cane on an intermittent basis, he could walk and stand for 10 to 15 minutes, and bending worsened the pain. He denied any flare-ups and stated that his symptoms were constant. He reported that he was slow to dress and bathe. Range of motion was flexion of 40 degrees; extension of 15 degrees, which diminished to 10 degrees after repetition; right lateral flexion and rotation to 20 degrees; and left lateral flexion and rotation to 25 degrees. There was pain at the end of the range of all movements, and other than extension, there was no additional limitation of motion with repetitive testing. The Veteran was tender to palpation over his left mid- and lower thoracic and lumbar paraspinal muscles; there were no spasms. Muscle strength testing was normal, sensory examination was normal, and deep tendon reflexes were hypoactive at the knees and ankles. X-rays showed thoracic strain and lumbar DDD. VA treatment records in December 2011 reflect a lumbar spine MRI result showing right disc extrusion at L5-S1 with the disc contacting the right S1 nerve root. Records in June 2012 document chronic back pain with pain radiating into both legs for the past two days. The Veteran complained of a crawling or stinging sensation in his legs, as well as a possible numb feeling in the proximal right thigh without weakness to the legs. He denied any urinary incontinence or retention. The back showed no point of tenderness or deformity, and he had a positive leg raise bilaterally at approximately 10 degrees. Deep tendon reflexes in the bilateral knees were hyperactive without clonus, hypoactive in the right ankle, and absent in the left ankle. The impression was chronic back pain, lumbar DDD. In September 2012, the Veteran complained of low back pain with radiation. VA treatment records in February 2013 indicate low back pain radiating to the left leg. The Veteran stated that the pain was worse with certain positions, but denied any changes in bowel or bladder movements. He denied any weakness but described numbness in his left foot. His back showed limited range of motion with flexion and extension, and there was nonspecific tenderness without point tenderness. There was a positive left leg straight leg raise at 60 degrees. The Veteran ambulated without difficulty. The differential diagnosis was rule out lumbar radiculopathy/sciatica and rule out lumbar disc. In May 2013, the Veteran complained of lower back pain and bilateral leg pain, with numbness in the toes and swelling in the ankles. In July 2013, the Veteran reported that he was having pain in his lower back that went down his legs, and that his toes were numb. The examining physician noted that he had lower back pain, though it was unclear how much of it was due to his current bladder infection, and that his examination was not impressive for radicular symptoms. X-ray showed an S-1 compression fracture. The Veteran reported that he went to the emergency room the night before and that he was told the shooting pain down his legs was a sciatic nerve problem. An August 2013 VA examination report documents lumbar spine DDD with chronic low back pain that remained unchanged. The Veteran reported no flare-ups. Range of motion was flexion of 45 degrees with pain at 45 degrees, extension of 20 degrees with pain at 20 degrees, and bilateral lateral flexion and rotation of 15 degrees. There was no additional limitation of motion with repetitive testing. There was focal and slight tenderness on palpation to the lower paralumbosacral spine and no guarding or muscle spasm. Muscle strength testing was normal except for knee extension, which was 4 out of 5. Sensory examination and deep tendon reflex were normal, there were no signs or symptoms of radiculopathy, and the Veteran denied bowel or bladder incontinence. The Veteran did not have IVDS. The examiner noted that the Veteran used a walker regularly, and that his range of motion was limited by joint pain and stiffness that was exacerbated by morbid obesity. VA treatment records in March 2014 reflects that the Veteran's low back pain worsened and intermittently traveled down to his left lower extremity with left foot numbness. In September 2014, the Veteran presented with back pain that traveled down both legs to his feet, and numbness in the toes. While the Veteran reported pain as 10 out of 10, he nevertheless ambulated into the emergency room with a steady and balanced gait, and bent over to get something while sitting with no signs of distress with even and unlabored breaths. VA treatment records in May 2015 reflect a statement from the Veteran's primary care physician finding that the December 2011 MRI and VA neurosurgery MRI evaluation did not show lumbar radiculopathy. In June 2015, the Veteran had very limited range of motion due to back spasm, no midline point tenderness, and positive straight leg raises. Deep tendon reflexes were normal in the bilateral knees, hypoactive in the right ankle, and absent in the left ankle. A June 2015 VA peripheral neuropathy examination indicates chronic low back pain secondary to lumbar spine DDD, which was unchanged. The examiner stated that in the last few months, the Veteran developed an intermittent "tingling" sensation to his lateral thighs, left worse than right, down to slightly below the knees bilaterally. The Veteran also reported numb-like sensation to the plantar feet, left greater than right. The examiner diagnosed lumbar radiculopathy, and noted no associated weakness. There was mild bilateral paresthesias and/or dysesthesias, normal strength testing and sensory examination, hypoactive bilateral knees and ankles, and no trophic changes. The examiner found that the Veteran had mild incomplete paralysis of the sciatic nerve bilaterally and used a walker regularly. VA treatment records in October 2015 document complaints of back pain flare-ups with radiating pain to the left leg. The back was tender at the lumbar spine and left S-1 joint. In February 2016, the Veteran went to the emergency room due to severe pain in his right leg. In March 2016, the Veteran complained of worsening low back pain for three weeks with pain that radiated to his right lower extremity. He denied any bowel or bladder problems. In June 2016, the Veteran reported continuing, severe pain in his back and right leg, and that he had been to the emergency room 15 times since April 2016 due to his right leg pain. The Veteran states that he had not been able to drive a car in three months due to the pain, and that he stayed in bed most of the time because it was hard to bear weight on the right leg. Private treatment records in July 2016 reflect that the Veteran had back surgery. During his April 2017 hearing, the Veteran testified that his leg was hurting all the time with pain shooting down his leg. He stated that his right foot was numb, and that he was having trouble sleeping and leaving his house. He reported that he was going to the VA emergency room about once to twice a week because his back was "locking up" and became painful if he stood for more than five minutes. He explained that he sometimes needed help to get in and out of the bathtub, that he used Velcro shoes because he could not bend over to tie laces, and that his wife put his socks on for him and clipped his toenails before she left for work. He stated that he had surgery in July 2016 because he had trouble laying down and riding cars, and was getting injections for the pain that only lasted for two weeks. He explained that the surgery helped for a month, but that he now experienced the same kind of pain. He reported that he no longer mowed the lawn, did not vacuum, and that his barber came to his house because he had trouble getting there. He stated that he had regular flare-ups that restricted his back movements and had to stay in bed all day, sometimes up to one or two weeks. He explained that he first started experiencing pain down his legs in 1993, at about the same time as the back pain. Upon review of the evidence, the Board finds that an initial evaluation of 40 percent, but not higher, for a thoracolumbar spine disability is warranted. The Board notes that the Veteran's range of motion in August 2011 was flexion to 40 degrees with pain at the end of the range, but that the examiner did not specify at which point pain started. In February 2013 the Veteran had a limited range of motion and ambulated with difficulty, in August 2013 the Veteran had flexion to 45 degrees, in June 2015 the Veteran had very limited range of motion due to back spasms, and between April 2016 and June 2016 the Veteran reported that he went to the emergency room approximately 15 times due to his back pain. In addition, the Board notes that the Veteran had back surgery in July 2016 because he had not been able to drive a car in three months due to the pain, and that he stayed in bed most of the time because it was hard to bear weight on the right leg. Further, during his April 2017 hearing, the Veteran testified that he required help to get in and out of the bathtub, that his wife clipped his toenails and put on his socks for him, and that he could not tie shoelaces. The Veteran also testified that he had flare-ups where his back would "lock up" and he would have to stay in bed for one to two weeks. Given the Veteran's lay statement describing his pain and flare-ups that could result in additional limitation of motion, the Board finds that the evidence is at least evenly balanced as to whether the symptoms of the Veteran's lumbar spine disability more nearly approximate flexion limited to 30 degrees or less. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 40 percent rating, but no higher, for the Veteran's lumbar spine disability is warranted. The Board notes that the evidence reflects that the Veteran did not have IVDS, and he has not contended that he suffered from incapacitating episodes due to IVDS. As such, a rating based on any alleged incapacitating episodes is not warranted. In addition, there is no evidence of ankylosis, which is required for a rating higher than 40 percent. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board further finds that no additional separate ratings are warranted for neurological disorders. In that regard, the Board notes that the Veteran is service-connected for radiculopathy of the right and left lower extremity, addressed below. Further, VA treatment records and VA examinations show that the Veteran denied experiencing any bowel or bladder problems. Thus, the Board finds that no other separate rating for neurological disabilities is warranted. The above determinations are based on consideration of the applicable provisions of VA's rating schedule. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For all the foregoing reasons, the Board finds, for the entirety of the appeal period, an initial evaluation of 40 percent, but not higher, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Radiculopathy of the Right and Left Lower Extremities The Veteran is currently service connected for radiculopathy of the right and left lower extremities, each separately rated as 10 percent disabling effective February 3, 2013. The Veteran stated that he has experienced bilateral radiculopathy of the lower extremities since his back pain started sometime around 1993. The evidence, as stated above, reflects diagnosis of radiculopathy in October 1998. The August 2011 VA examination documents intermittent radiating pain in the left leg. In June 2012, the Veteran complained of a crawling or stinging sensation in his legs, as well as a possible numb feeling in the proximal right thigh. The record shows that deep tendon reflexes were hypoactive in the right ankle and absent in the left ankle, and that the Veteran had a positive leg raise. Likewise, in February 2013, the Veteran complained of radiating pain to the left leg and numbness in the left foot, and he had a positive straight leg raise. The Board finds that there is no evidence that the Veteran's radiculopathy of the right and left lower extremities just suddenly appeared on the date of the February 3, 2013. To the contrary, the evidence shows that the Veteran has claimed radiating pain to his legs since at least October 1998, and that he continuously complained of radiating pain through February 2013. In Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the Court held that an "'effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested" (citing DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011); Hazan v. Gober, 10 Vet. App. 511, 521 (1997) (noting that for increased ratings claims, section 5110(b)(2) requires VA to 'review all the evidence of record"). Given the findings regarding radiating pain into the legs, positive straight leg raises, and abnormal sensory examination, the evidence is in relative equipoise as to whether the Veteran has experienced radiculopathy of the right and left lower extremities warranting a separate initial compensable rating under DC 8520 during the pendency of the claim. Resolving reasonable doubt in favor of the Veteran, entitlement to a separate compensable initial rating for radiculopathy of the right and left lower extremities under DC 8520 is warranted from September 29, 2010, the date the Veteran filed his claim for service connection for a back disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. However, the Board finds that the symptoms most nearly approximated mild severity during the pendency of the claim, and the preponderance of the evidence reflects that they do not more nearly approximate moderate severity. In this regard, the Board notes that while the Veteran complained of bilateral radiating pain, the Veteran described the pain as intermittent in August 2011, March 2014, and June 2015. Further, deep tendon reflexes were hypoactive at the knees and ankles in August 2011; hyperactive without clonus in the bilateral knees, hypoactive in the right ankle, and absent in the left ankle in December 2011; normal in August 2013; and normal in the bilateral knees, hypoactive in the right ankle, and absent in the left ankle in June 2015. In addition, the June 2015 VA examiner specifically found that the Veteran had mild incomplete paralysis of the sciatic nerve bilaterally. The benefit of the doubt doctrine is thus not for application in this regard, and a separate initial rating of 10 percent, but no higher, for radiculopathy of the right and left lower extremities is warranted under DC 8520 throughout the pendency of the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to these claims. See Doucette, 28 Vet. App. at 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). III. TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). As noted, the issue of entitlement to a TDIU was raised by the evidence, and the Court has held that the Board can, and should, address this issue in the first instance because it is part and parcel of a claim for a higher rating where there is evidence of unemployability and the Veteran seeks the highest rating possible. If there is no formal TDIU application form (VA Form 21-8940) of record, VA must make a decision on the issue of IU based on the available evidence of record. VA Adjudication Manual, IV.ii.2.F.2.b. 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected disability and advancing age, which would justify a TDIU due solely to the service-connected disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran has been granted service connection for thoracic strain and lumbar DDD (now rated as 40 percent disabling from September 29, 2010); right ankle strain (rated as 20 percent disabling from September 29, 2010); lumbar spine scar, status post associated with thoracic strain and lumbar DDD (rated as 10 percent disabling from September 29, 2010); right lower extremity radiculopathy associated with thoracic strain and lumbar DDD (now rated as 10 percent disabling from September 29, 2010); and left lower extremity radiculopathy associated with thoracic strain and lumbar DDD (now rated as 10 percent disabling from September 29, 2010). The Veteran has a combined rating of 70 percent from September 29, 2010. Thus, the Veteran met the requirements for a TDIU on a schedular basis under 38 C.F.R. §4.16(a) from September 29, 2010. Even so, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Consequently, the Board must determine whether the Veteran's service-connected disabilities combine to preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2016). In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The evidence of record reveals that the Veteran has a high school diploma and worked as supervisor at a chemical company until December 1992. The Veteran stated that this was a desk job. VA treatment records in August 2013 reflect that chronic back pain would interfere with the Veteran's work performance in any physical type of employment that required prolonged standing and ambulation. During his April 2017 hearing, the Veteran testified that he been to the VA emergency room once to twice a week because of his back pain. He stated that when he stood up for five minutes or more his back felt like it was "locking up" on him, and that it hurt to turn or move. He explained that it was difficult to perform activities of daily living such as taking a bath, cutting his toe nails, or putting on his shoes; and that he required the help of his brother of wife. He also stated that he no longer mowed the lawn or vacuumed, and that his barber came to his home because going to him was difficult. Further, he reported that his service-connected back and bilateral radiculopathy of the lower extremities would prevent him from obtaining or maintaining gainful employment. Thus, the evidence is in relative equipoise as to whether the Veteran's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. Moreover, the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to service connection for an initial rating of 40 percent, but no higher, for thoracic strain and lumbar DDD is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a separate, initial rating of 10 percent, but no higher, for radiculopathy of the right lower extremity from September 29, 2010, to February 3, 2013, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a separate, initial rating of 10 percent, but no higher, for radiculopathy of the left lower extremity from September 29, 2010, to February 3, 2013, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity from February 3, 2013, is denied. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity from February 3, 2013, is denied. Entitlement to a TDIU is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs