Citation Nr: 1813256 Decision Date: 03/08/18 Archive Date: 03/14/18 DOCKET NO. 09-32 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an effective date earlier than July 7, 2009, for a 40 percent evaluation of the lumbar spondylolysis and spondylolisthesis with degenerative disc disease and arthritis. 2. Entitlement to an effective date earlier than July 7, 2009, for a 20 percent evaluation of sciatic nerve radiculopathy of the left lower extremity. 3. Entitlement to an effective date earlier than August 5, 2009, for a 10 percent evaluation of radiculopathy of the right lower extremity. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Ralph J. Bratch, Esq. ATTORNEY FOR THE BOARD T. C. King, Associate Counsel INTRODUCTION The Veteran had honorable active duty service in the United States Army from January 17, 1963, through March 28, 1963. These matters come before the Board of Veterans' Appeals (Board) from August 2009 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted service connection for the Veteran's lumbar condition, evaluated at 20 percent from September 15, 2004, and at 40 percent from July 7, 2009; granted service connection for sciatic nerve radiculopathy of the left lower extremity, evaluated at 10 percent from September 15, 2004, and at 20 percent from July 7, 2009; and granted service connection for radiculopathy of the right lower extremity evaluated at 10 percent effective August 5, 2009. A rating decision in October 2013 granted service connection and a 10 percent evaluation for anterior crural nerve radiculopathy of the left leg; a rating decision dated September 2014 proposed a reduction of the 40 percent evaluation for the lumbar spine, and a February 2015 rating decision decreased the evaluation of the lumbar spine to 20 percent effective May 15, 2015. These rating decisions are not on appeal before the Board at this time. The evidence before the Board consists of an electronic record located in the Veterans Benefits Management System (VBMS)/Virtual VA. FINDINGS OF FACT 1. From September 15, 2004, through July 7, 2009, the lumbar spondylolysis and spondylolisthesis with degenerative disc disease and arthritis did not manifest in forward flexion of the thoracolumbar spine of 30 degrees or less. 2. From September 15, 2004, through July 7, 2009, the Veteran's sciatic nerve radiculopathy of the left lower extremity is best approximated as a moderate incomplete paralysis. 3. From September 15, 2004 through August 5, 2009, the Veteran had radiculopathy of the right lower extremity which is best approximated as a mild incomplete paralysis of the sciatic nerve. 4. From July 7, 2009, the Veteran's service-connected disabilities precluded his substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than July 7, 2009, for a 40 percent evaluation of the lumbar spondylolysis and spondylolisthesis with degenerative disc disease and arthritis have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.400(r), 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5239 (2017). 2. The criteria for entitlement to an effective date earlier than July 7, 2009, for a 20 percent evaluation of sciatic nerve radiculopathy of the left lower extremity have been met; the Veteran is entitled to a 20 percent evaluation from September 15, 2004, through July 7, 2009. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400(r), 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for entitlement to an effective date earlier than August 5, 2009, for a 10 percent evaluation of radiculopathy of the right lower extremity have been met; the Veteran is entitled to a 10 percent evaluation from September 15, 2004 through August 5, 2009. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400(r), 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for establishing entitlement to TDIU benefits from July 7, 2009, but not before, have been met. 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES I. Duty to Assist In this case, the Veteran contends that the VA did not fulfill its duty to assist in providing him with a timely VA examination after his September 2004 claim to reopen was filed. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156 (a) [requiring new and material evidence to reopen finally adjudicated claims]. Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § 3.156(c)(1). Records not included are those that VA could not have obtained when it decided the claim because they did not exist when VA decided the claim, or the claimant failed to provide sufficient information for VA to identify and obtain them from the respective service department, the JSRRC, or from any other official source. 38 C.F.R. § 3.156(c)(2). At issue here is a claim to reopen a denial of the Veteran's lumbar spine condition, for which he had been initially denied in December 1963 on the basis that there was no in-service aggravation. Post-reopening, the denial was continued, on the basis that no in-service aggravation was established with new evidence. On appeal, the Veteran submitted an October 2006 medical opinion and provided testimony regarding the in-service injury, which prompted a finding of new and material evidence, and a remand order for further development by the Board in April 2009. In July 2009, a VA examination was afforded, and service connection was granted thereafter. The Board notes that the delay in affording the Veteran with a contemporaneous examination upon filing his claim to reopen is regrettable, with the benefit of hindsight in light of the ultimate grant of service connection. However, the VA does not have the obligation to afford a new medical examination each time a request to reopen a previously denied claim is received. An examination or opinion is necessary only if, inter alia, there is insufficient medical evidence to make a decision on the claim. 38 U.S.C. § 5103A(d). As the initial basis for the denial was not the lack of current disability or degree thereof, but rather was based on the lack of a nexus and/or an in-service incurrence, a VA examination was not required. As the July 2009 VA examination occurred and was within a reasonable timeframe from the submission of new evidence that triggered the duty to assist, the duty to assist is considered to have been satisfied, and in a reasonably timely manner. The Veteran has not raised any other procedural arguments regarding the notice or assistance provided for the claims related to his claim. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Earlier Effective Dates The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim. 38 U.S.C. § 5110(a), (b). The effective date of an award based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(r). An award made based all or in part on the records identified by 38 C.F.R. § 3.156 (c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c)(4). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes (DC) identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded, and pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). In a 1997 VA examination, the Veteran's forward flexion was measured with a goniometer, and pain was noted to begin at 45 degrees. The Veteran was noted to be limping on his left leg, and sciatica was noted. A February 2004 private physician note recorded that the Veteran had bilateral shoulder pain, and noted that the Veteran reported lifting 50 pounds repetitively at work. A private physician note dated October 2004 recorded the Veteran having presented complaining of problems with night sweats. The Veteran reported a positive PPD back in 1968, chest x-ray showing some COPD, and he reported some bilateral foot and ankle pain, which had gone on for several years. "No other acute complaints" was noted in the record. In medical treatment records furnished by the Social Security Administration, there is a private treatment record from a Dr. S., M.D. in December 2004 recorded an examination for an injury to the Veteran's lower back and shoulder following a fall on ice. The physician recorded no ecchymosis, no swelling, with some tenderness of the lumbar paraspinal muscles bilaterally. The physician recorded flexion to 60 degrees, prescribed some pain medications and recommended a five pound lifting restriction, no commercial driving, no repetitive bending, twisting, and no strenuous pushing or pulling. A December 2004 note from the physician associated with his employer indicated that the Veteran injured himself after he slipped on some ice and fell flat on his lower back and tail bone, trying to break the fall by grabbing the side of the truck. A January 2005 private physician note recorded that the Veteran reported having fallen through a hole in his floor into the basement, one note estimating it as a fall from 6-7 feet and the other as a fall from 8 feet. A January 2005 physician note indicates that the Veteran was off of work due to a low back injury and while he was out, fell down his basement stairs. A January 2005 physical therapy note indicated that the Veteran's trunk active range of motion was within normal limits for extension and flexion (sitting). Dr. S., M.D. examined the Veteran on January 7, 2005, and noted no ecchymosis, no swelling, with some tenderness over the left lumbar paraspinal muscles, and noted that the Veteran had flexion of the lumbar spine to 90 degrees. The Veteran was advised to continue the low back exercises daily, and the same restrictions were continued, with the exception of the pushing and pulling. A January 26, 2005, private physician note recorded full flexion of the back, with some tenderness, no spasms, and no change from January 17, 2005. A February 16, 2005, private physician note recorded that the Veteran reported pain was better after physical therapy. The note recorded flexion to 90 degrees, with a lessening in the tenderness, and no spasms. Medical records in September 2006 noted that the Veteran reported worsening of his lumbar spine condition. In the February 2007 DRO hearing, the Veteran testified that he experience back pain and stiffness of the same severity since at least 2004. The Veteran reported tingling that goes into his left leg, and when his back was real stiff the tingling would occasionally go into his right leg. The Veteran testified to flares of stiffness, and indicated that he had difficulty getting dressed and that he used Velcro shoes to avoid having to bend to tie his shoes and reported having to sit on the bed to put his pants on, rather than standing as he used to. The Veteran indicated that when he was a driver, he would "slip-shift" to avoid using his leg because of the pain. During the July 2009 VA examination, the examiner recorded a 25 degree limitation in forward flexion. The VA examiner noted having compared July 2009 x-rays with September 2006 x-rays, and noted having shown an interval worsening of multilevel degenerative changes and lumbar spondylosis, particularly at the L2-3 through L5-S1 level, with retrolisthesis noted at L4-5 with worsening at L3-4. The Veteran was noted to have reported radiating pain in the left lower extremity with tingling and numbness to the toes. The examiner noted lower extremity weakness and atrophy, greater on the left. A December 2009 VA examination of the thoracolumbar spine showed forward flexion of the lumbar spine of 28 degrees. The examiner diagnosed the Veteran with radiculopathy to the bilateral lower extremities, and indicated that the Veteran was moderately affected by degenerative arthritis of the lumbar spine with radiculopathy to the left lower extremity and mildly affected by radiculopathy to the right lower extremity. The Veteran reportedly indicated that the left lower extremity radicular symptoms progressed in severity since the initial 1963 injury, with his right leg getting worse in the 2000s. The Veteran was noted to be somewhat uncomfortable-appearing with an antalgic gait favoring the left lower extremity and having a loss of usual lumbar lordosis, not using any ambulatory assistive devices or braces. In a September 2014 VA examination, the Veteran was noted having reported that his back was worse as far as pain and mobility. The examiner measured flexion to 50 degrees, with painful motion beginning at 50 degrees. The examiner noted that the pain reported by the Veteran was out of proportion to the findings, and that there were not sufficient findings on the examination or the x-ray to indicate that there was a further loss of motion due to pain, fatigue, weakness, or repetitive motion of the back. A. Entitlement to an effective date earlier than July 7, 2009, for a 40 percent evaluation of the lumbar spine, to include spondylolysis and spondylolisthesis with degenerative disc disease and arthritis ("lumbar spine"). Here, the Veteran is currently evaluated at 20 percent for his thoracolumbar spine disability for the period from September 15, 2004 through July 6, 2009, under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5239. He contends he should be evaluated at 40 percent, contends that the July 2009 VA examination results should have been applied to the entire prior period since filing the reopener, and that private physician records should be excluded from consideration because they do not specifically note having used a goniometer. 38 C.F.R. § 4.71a, Diagnostic Codes 5237 through 5243 are applicable to the spine. The current General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine 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. An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine 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 severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, a summary of which is as follows. First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion of 0 to 30 degrees, and left and right lateral rotation are 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. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). Fourth, each range of motion should be rounded to the nearest 5 degrees. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). Fifth, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Sixth, disabilities of the thoracolumbar and cervical spine segments are to be evaluated separately, except when there is unfavorable ankylosis or both segments. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). An evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). In short, for this case, to qualify for a higher evaluation for the non-neurologic portion of his thoracolumbar disability, the Veteran must show a disability equivalent to limitation of forward flexion to 30 degrees or less. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The value of the goniometer for VA examinations, as provided for by 38 C.F.R. § 4.46 is duly recognized. However, the Board is not prohibited from considering private records containing range of motion notations that do not acknowledge that a goniometer was used, and affording them the weight they deserve. The Board acknowledges that the benefit of doubt warrants affording such measurements a reasonable margin of error. Even when affording the Veteran a substantial benefit of doubt and a sizeable margin of error to the range of motion measurements from 2004 and 2005, the Board cannot arrive at any finding that the Veteran's disability ever was approximated by forward flexion limited to 30 degrees or less before the July 2009 VA examination. The record reflects numerous entries that suggest a much greater range of normal range of motion during this time period, and the treating records are silent for any complains of significant back limitations prior to December 2004, despite containing other reports of more minor medical conditions and medical history that would be reasonably expected to be reported secondarily to such a limitation of flexion to 30 degrees or less. Moreover, assuming the private records were based on estimates, the Board finds that the credentials of Dr. S., M.D. denote a professional who has had sufficient training to not conflate 60 and 90 degree estimates of flexion with a 30 degree or less range of motion limitation. These findings are also corroborated by other treatment entries noting and suggesting full range of motion. The pain and stiffness on flare-ups and repetitive motion was considered, but there is insufficient competent evidence that such rose to a level equivalent with flexion limited to 30 degrees or less during this period. The Board finds that the weight of the competent evidence indicates that the Veteran did not present a thoracolumbar disability equivalent to flexion limited to 30 degrees or less as of the filing of the claim in September 2004 through January 2005. Regarding the period after January 2005, there is no competent medical evidence of any significant forward flexion limitation until the July 2009 VA examination. The 2009 VA examination noted a worsening based on objective diagnostic imaging since the 2006 x-rays, which signifies that the disability was not the same severity in 2006. The July 2009 VA examination flexion measurements were close to the 30 degree limitation threshold, and the Board finds it less likely than not that the condition was of a similar severity in 2006. Various pain management medications and reports of efforts to alleviate pain were considered, but pain management efforts through medication and rest vary and are not particularly probative evidence of the specific severity of a back disability, particularly if, as in this case, there were other injuries. The Veteran contends he "consistently reported symptoms that correspond to a at least a 40 percent disability rating for his back condition from the time he filed his claim on September 15, 2004." See January 2018 Appellant Brief. However, review of the credible evidence of record and the disability picture does not support this contention. There are some disparities in the reports of symptoms by the Veteran, as reflected in the private medical records and in the VA examinations. Even if it were not for these disparities, the Veteran's testimony would otherwise be afforded little weight on the proper evaluation for this period, as "some medical issues fall outside the realm of common knowledge of a lay person." See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The evidence of record preponderates against a finding that the Veteran's limitation of motion was approximated by forward flexion limited to 30 degrees or less at any point prior to July 7, 2009; accordingly, the earlier effective date for the assigned 40 percent evaluation of the Veteran's lumbar spine, to include spondylolysis and spondylolisthesis with degenerative disc disease and arthritis, is denied. B. Entitlement to an effective date earlier than July 7, 2009, for a 20 percent evaluation of sciatic nerve radiculopathy of the left lower extremity. Here, the Veteran is currently evaluated at 10 percent from September 15, 2004, to July 7, 2009, for sciatic nerve radiculopathy of the left lower extremity. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, "Paralysis of Sciatic Nerve," a 10 percent evaluation is warranted for mild incomplete paralysis, a 20 percent evaluation is warranted for moderate incomplete paralysis, a 40 percent evaluation is warranted for moderately severe incomplete paralysis, and a 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy; Complete paralysis warrants an 80 percent evaluation. Id. Affording the Veteran the full benefit of doubt, the Board finds the limping noted on the 1997 VA examination and his testimony regarding "slip-shifting" sufficiently corroborate his contention that a moderate incomplete paralysis of the sciatic nerve for the left lower extremity existed on the date of the claim filing in September 2004. Accordingly, the Veteran is entitled to an evaluation of 20 percent from September 15, 2004, through July 6, 2009, for a moderate incomplete paralysis of the sciatic nerve for the left lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520. This is considered a grant of the benefits sought on appeal for this condition; further analysis is not required. C. Entitlement to an effective date earlier than August 5, 2009 for a 10 percent evaluation of radiculopathy of the right lower extremity. Here, the Veteran is currently not afforded a compensable evaluation for the period of September 15, 2004, to August 4, 2009, for sciatic nerve radiculopathy of the right lower extremity. Affording the Veteran the full benefit of doubt, the Board finds the testimony presented in the February 2007 hearing and the results of the July 2009 VA examination sufficiently corroborate his contention that he had mild radiculopathy of the right lower extremity. Accordingly, the Veteran is entitled to an evaluation of 10 percent from September 15, 2004, through August 4, 2009, for a mild incomplete paralysis of the sciatic nerve for the left lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520. This is considered a full grant of the benefits sought on appeal for this condition; further analysis is not required. III. Entitlement to a TDIU A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 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." 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 (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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 54. The Veteran met the schedular criteria for a TDIU as of July 7, 2009. The Board has considered the qualifications and the March 21, 2012, report of the vocational expert retained by the Veteran. The Board finds the vocational expert adequately qualified to offer an opinion. The vocational expert considered various medical records between 2006 and 2012. He summarized that the Veteran was well below the physical capacity required for sedentary work; that the Veteran can only lift 3-4 pounds on most days and only if he does not have to bend. The Veteran's need to recline for several hours during the day was noted, and the vocational expert opined that the Veteran can only sit in an industrial chair for a few minutes. The Veteran's inability to significantly contribute to household chores, as well as the interference with concentrating due to the pain was noted. The Veteran's poor academic skills were noted. The vocational expert concluded that the Veteran has been unable to secure or maintain gainful employment since September 2004. Based on the foregoing report, which is generally consonant with the evidence of record (to the material extent of this holding), careful consideration of the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds the service-connected disabilities have rendered the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background since the date the schedular criteria was met. Accordingly, a TDIU is granted from July 7, 2009. (CONTINUED ON NEXT PAGE) ORDER An earlier effective date for the assigned 40 percent evaluation of the Veteran's lumbar spine, to include spondylolysis and spondylolisthesis with degenerative disc disease and arthritis, is denied. An evaluation of 20 percent from September 15, 2004, through July 6, 2009, for a moderate incomplete paralysis of the sciatic nerve for the left lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520 is granted. An evaluation of 10 percent from September 15, 2004, through August 4, 2009, for a mild incomplete paralysis of the sciatic nerve for the left lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520 is granted. A TDIU is granted from July 7, 2009. ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs