Citation Nr: 19155166 Decision Date: 07/18/19 Archive Date: 07/17/19 DOCKET NO. 14-19 701 DATE: July 18, 2019 ORDER Entitlement to an initial rating in excess of 10 percent for the period of December 8, 2006 to July 25, 2013 for a low back disability is denied. Entitlement to a rating of 20 percent, and no higher, for the period of July 25, 2013 to June 27, 2016 for a low back disability is granted. Entitlement to a rating in excess of 40 percent from June 28, 2016 for a low back disability is denied. Entitlement to a rating of 20 percent, but not higher, prior to June 28, 2016 for left lower extremity radiculopathy involving the sciatic nerve is granted. Entitlement to a rating in excess of 20 percent from June 28, 2016 for left lower extremity radiculopathy involving the sciatic nerve is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the period of December 8, 2006 to July 25, 2013, the Veteran’s low back disability did not manifest with a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; have a combination range of motion of no greater than 120 degrees; guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; or incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 2. For the period of July 25, 2013 to June 27, 2016. The Veteran’s low back disability manifested with muscle spasm or guarding severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. Effective June 28, 2016, the Veteran’s low back disability manifested with a forward flexion of the thoracolumbar spine of 30 degrees or less. 4. For the entire period of the appeal (prior to and after June 28, 2016), the Veteran’s left lower extremity radiculopathy is best assessed as manifesting with moderate incomplete paralysis of the sciatic nerve. 5. The weight of competent and credible evidence is that the Veteran is not precluded from securing or following all forms of substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to July 25, 2013 and a rating in excess of 40 percent from June 28, 2016 for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5235-5243 (2018). 2. The criteria for a rating of 20 percent for the period of July 25, 2013 to June 27, 2016 for a low back disability have been meet. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5235-5243 (2018). 3. The criteria for a rating in excess of 40 percent effective June 28, 2016 for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5235-5243 (2018). 4. The criteria for entitlement to a rating of 20 percent prior to June 28, 2016 for left lower extremity radiculopathy involving the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.3, 4.123, 4.124a, Diagnostic Code 8520 (2018). 5. The criteria for entitlement to a rating in excess of 20 percent effective June 28, 2016 for left lower extremity radiculopathy involving the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.3, 4.123, 4.124a, Diagnostic Code 8520 (2018). 6. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to July 1991, with additional service in the National Guard through January 2008. These matters are before the Board of Veterans’ Appeals (Board) on appeal from the December 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) continuing the evaluation of residuals, surgery lumbar disc disease and radiculopathy, left leg at 10 percent disabling; and the August 2016 rating decision increasing the evaluation of the degenerative disc disease, lumbar with lumbar spinal stenosis and lumbar intervertebral disc syndrome (IVDS) to 40 percent disabling; and the evaluation of lumbar radiculopathy lower extremity, left leg (sciatic nerve) to 20 percent disabling. In a March 2018 Board decision, the above issues along with TDIU were remanded with directives for the RO to send the Veteran a TDIU application and assist him with his claim, as well obtain the Veteran’s records from the Social Security Administration (SSA). See BVA Decision, March 2018. The SSA records have been received and added to the Veteran’s claims file. Because these staged ratings do not represent a grant of the maximum benefits allowable for the entire period, and the Veteran wished to continue his appeal, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial rating in excess of 10 percent for the period of December 8, 2006 to July 25, 2013 for a low back disability 2. Entitlement to a rating of 20 percent, and no higher, for the period of July 25, 2013 to June 27, 2016 for a low back disability 3. Entitlement to a rating in excess of 40 percent from June 28, 2016 for a low back disability The Veteran asserted that an initial rating in excess of 10 percent for his low back disability vis warranted. See NOD, August 2011; see also Third Party Correspondence, December 2013. The Veteran’s low back disability is currently rated at 40 percent and was previously rated at 10 percent under Diagnostic Code (DC) 5243. Diagnostic Code 5243 allows for evaluation of intervertebral disc syndrome (IVDS) either under General Rating Formula for Diseases and Injuries of the Spine (DCs 5235-5242) or under the formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which ever method result in the higher evaluation when all disabilities are combined under § 4.25. See 38 § 4.71a, The Spine, Note 6. Under DC 5243, evaluations range from 10 to 60 percent based on the number of incapacitating episodes (period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician). 38 C.F.R. § 4.71a, DC 5243. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six (6) weeks during the previous 12 months. Id. Under the General Rating Formula for Diseases and Injuries of the Spine, DCs 5235-5242, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or a combined range of motion 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. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. Id. These ratings are made 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. Id. As an initial matter, the Board notes that the evidence of record does not reflect that the Veteran has been diagnosed with favorable or unfavorable ankylosis of the entire thoracolumbar spine. As such, an analysis of the Veteran’s low back disability at the 50 and 100 percent disability rating under DCs 5235-5242 is not necessary. Additionally, there is no evidence of record to support a finding that the Veteran had incapacitating episodes having a total duration of at least 2 weeks or more during the previous 12 months. As such, an analysis of the Veteran’s low back disability at the 20, 40, and 60 percent disability rating under DC 5243 is not necessary. The Period Prior to July 25, 2013 In December 2006, the Veteran submitted a claim for service connection for a back injury and left leg atrophy. See VA Form 21-526, December 2006. The Veteran’s service treatment and personnel records reflect that in August 2007 a medical evaluation of the Veteran’s chronic low back pain and lumbar radiculopathy was conducted. See Military Personnel Record, March 2008 at p.3 of 209. The examiner noted that the tone of the Veteran’s upper and lower extremities was within normal limits, with no evidence of atrophy or fasciculation. Id. at p.5 of 209. Initial active range of motion (ROM) of forward flexion was 82 degrees and 80 degrees after repetitive use. Id. The combined initial ROM was 179 degrees and 190 degrees after repetitive use. Id. In April 2008, the Veteran was afforded a VA examination for the spine. See VA Examination, April 2008. The Veteran reported having two back surgeries; the first in March 2004 and the other in September 2005. The Veteran reported that his back hurts daily upon prolonged sitting, bending or lifting, with a pain level 6-7/10 towards the end of the day. The Veteran reported that he has shooting pain in the left lower extremity about three to four times a month, and leg weakness and foot numbness occurring daily. He also reported that his back is stiff in the morning and his left foot hurts when he wears a shoe. The Veteran reported that he was “confined to bed in March of 2004 and again for two or three days in 2007.” The examiner indicated that the Veteran’s gait was normal. Initial active range of motion (ROM) of forward flexion was 90 degrees with pain noted at 70 degrees and 75 degrees after repetitive use. The combined initial ROM was 170 degrees and 143 degrees after repetitive use. Id. In the June 2008 rating decision, the RO granted the Veteran service connection for his low back disability and left leg radiculopathy with an evaluation of 10 percent disabling for each disability. See Rating Decision-Narrative, June 2008. In a July 2008 private chiropractic examination, the Veteran indicated that his back pain comes and goes and was moderate. He could lift heavy weight, but it causes extra pain and his back pain prevents him from sitting for more than one hour. He cannot stand for longer than 1 hour without increasing pain, had no pain while walking, and pain seems to be getting better, but his improvement is slow. See Medical Treatment Records-Furnished by SSA (2008-2015), September 2018 at p.107 of 126. The Veteran’s forward flexion was 80 degrees; combined ROM was 215 degrees. Id. at p.109 of 126. In September 2010, the Veteran was afforded a VA examination for his low back disability. See VA Examination, September 2010. The Veteran reported that he was not presently on medications. He was able to walk 1 mile, and he had no incapacitating episodes in the past 12 months. The examiner noted that the Veteran had a rhythmic and symmetrical walk. The Veteran’s flexion was 75 degrees; combined ROM was 210 degrees. The examiner noted that there was no loss of function with repetitive use. The examiner also noted that there was some paraspinal spasm on the left. A September 2012 imaging report reflects that the Veteran had some spondylosis, but no significant scoliosis and no spondylolisthesis. See Medical Treatment Records-Furnished by SSA (2008-2012), September 2018 at p.56 of 72. In November 2012, the Veteran underwent a left L5-S1 hemilaminectomy, discectomy, and foraminotomy. Id. at p.60 at 72. In an April 2013 musculoskeletal and posture assessment conducted by a private provider, the Veteran’s range of motion was recorded as “flexion 6 inches, extension 23 degrees, left side bending 22 inches, right side bending 23 inches, left rotation 25%, right rotation 50%, long sitting 3 inches.” See Medical Treatment Records-Furnished by SSA (2012), September 2018 at p.153 of 146. The Board finds that under DCs 5235-5242, prior to July 25, 2013, the Veteran’s low back disability did not meet the criteria for a rating in excess of 10 percent. Range of flexion was greater than 60 degrees and the combined range greater than 120 degrees. The chiropractor measurements were not sufficiently specific to apply to the rating criteria. There is no evidence indicating that the Veteran had muscle spasms, guarding severe enough to result in abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. Therefore, a rating of 20 percent is not warranted for this period. The Board finds that the reported limitations in endurance of standing, sitting and walking were mild and did not prohibit normal daily activities. In addition, the Board finds that there is no evidence of record to support a finding that the Veteran had at incapacitating episodes having a total duration of 2 weeks or more during the prior 12 months. As such, an initial rating in excess of 10 percent is not warranted and therefore, is denied. The Period of July 25, 2013 to June 27, 2016 On July 25, 2013, the Veteran was afforded another VA examination for his low back disability. See VA Examination, November 2013 at p.5 of 13. The Veteran reported that he has constant pain in the middle of his spine and pain that radiates to his left lower extremity all the way to his foot about 2-3 times a day. Id. at p.6 of 13. The Veteran also reported having flare-ups. Id. The Veteran’s initial ROM was forward flexion 85 degrees with pain noted at 80 degrees; combined ROM was 170. Id. at p.7 of 11. Repetitive-use ROM for forward flexion was 85; combined ROM was 180 degrees. Id. The examiner indicated that there was no additional limitation in ROM after repetitive-use testing. Id. at p.8 of 11. The examiner noted that the Veteran had functional loss, impairment, or additional limitation of ROM manifested by less movement than normal and pain on movement. Id. The examiner noted that the Veteran had localized tenderness over the midline of his lumbar spine and left lumbar paraspinal muscles. Id. The examiner noted that the Veteran had guarding or muscle spasm of the thoracolumbar spine severe enough to result in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board finds that under DCs 5235-5242, the Veteran’s low back disability met the criteria for a rating of 20 percent disabling and no higher from July 25, 2013 to June 27, 2016. There is no evidence of record to support a finding that the Veteran had a forward flexion of the thoracolumbar spine of 30 degrees or less. Therefore, a rating of 40 percent is not warranted for this period. In addition, the Board finds that there is no evidence of record to support a finding that the Veteran had at incapacitating episodes having a total duration of 4 weeks or more during the prior 12 months. As such, an initial rating in excess of 20 percent is not warranted and therefore, is denied. The Period Since June 28, 2016 In January 2015, the Veteran underwent a left L5-S1 laminectomy. See SSA (2008-2015) at p.62 of 126. On June 28, 2016, the Veteran was afforded another VA examination for his low back disability. See C&P Exam, June 2016. The Veteran reported that he currently uses heating pads and a TENS unit. The Veteran reported continuous pain of 5/10 on a daily basis, with pain increasing to 10/10 at times. The Veteran reported that he can no longer walk long distances or run. He also reported pain with sexual intercourse, while performing household tasks, and with repetitive motion. Id. The Veteran’s initial ROM forward flexion was 20 degrees; combined ROM was 95 degrees. The examiner noted that the Veteran cannot perform repetitive bending and stooping. Pain, which causes functional loss, was noted upon forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The examiner indicated that there was no evidence of pain with weight bearing. Repetitive-use ROM forward flexion was 10 degrees; combined ROM was 85 degrees. The examiner indicated that the Veteran did not have guarding, muscle spasm, or muscle atrophy. The examiner noted that the Veteran reported having incapacitating episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months. The Board finds that under DCs 5235-5242, the Veteran’s low back disability met the criteria for a rating of 40 percent and no higher from June 28, 2016 and thereafter. Upon review of the Veteran’s records from 2016 to 2018, there is no evidence of record to suggest that the Veteran’s low back disability has manifested with ankylosis of the entire thoracolumbar or entire spine, nor has the Veteran had incapacitating episodes having a duration of at least 6 weeks during the prior 12 months. As such, a rating in excess of 40 percent from June 28, 2016 and thereafter is not warranted and therefore, is denied. 4. Entitlement to a rating in excess of 10 percent prior to June 28, 2016 and a rating in excess of 20 percent thereafter for left lower extremity radiculopathy involving the sciatic nerve The Veteran asserted that a rating in excess of 10 percent for his left lower extremity radiculopathy was warranted. See NOD, August 2011; see also Third Party Correspondence, December 2013. The Veteran’s left lower extremity radiculopathy is currently rated under DC 8520, which provides for rating paralysis of the sciatic nerve, manifested by complete paralysis ratable at 80 percent; severe incomplete paralysis with marked muscular atrophy ratable at 60 percent; moderately severe incomplete paralysis ratable at 40 percent; moderate incomplete paralysis ratable at 20 percent; and mild incomplete paralysis ratable at 10 percent. 38 C.F.R. § 4.124a. The term “incomplete paralysis,” with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. In rating peripheral nerve disability, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating-is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Based on review of the evidence of record, the Board finds that the subjective and objective evidence supports an initial disability rating of 20 percent and for the entire appeal period. In December 2006, the Veteran submitted a claim for service connection for a back injury and left leg atrophy. See VA Form 21-526, December 2006. During the August 2007 military medical board evaluation, the examiner noted no atrophy, no sensory deficit, and grossly hyperreflexic tendons in the Veteran’s knees and achilles. See Military Personnel Record, March 2008 at p.6 of 209. The examiner noted that a January 2007 EMG showed “evidence of acute on chronic left L5/S1 radiculopathy with evidence of reinnervation.” Id. In April 2008, the Veteran was afforded a VA examination for the spine. See VA Examination, April 2008. The Veteran reported having continued pain radiating to his left lower extremity after his initial surgery. He reported having a shooting pain in the left lower extremity about 3 to 4 times a month, but experiences left lower extremity weakness and left foot numbness daily. The circumference of the Veteran’s left thigh was 52.5 cm and the right thigh was 53 cm. The Veteran’s right ankle reflex was 2+ and the left ankle reflex was 0. The sensory examination showed that the right lower extremity was normal and the left leg sensory was described as “decreased pinprick on the lateral aspect of the left leg” with reported tingling sensation when sensory examination was done on the left foot. The Veteran was diagnosed with left sided radiculopathy and wasting of the left calf muscles. During the September 2010 VA examination for the Veteran’s low back disability, the examiner noted that there was tingling in the Veteran’s great left toe and the deep tendon reflex of the ankle was less on the left side. See VA Examination, September 2010, at p.2 of 6. In a July 2012 correspondence, a private physician stated that the Veteran had been a patient since October 2002 and the Veteran had persistent lower extremity weakness with muscle atrophy as a result of nerve root damage. See Medical Treatment Records-Furnished by SSA (2008-2015), September 2018 at p.107 of 126. During the Veteran’s August 2013 VA examination for his low back disability, the Veteran reported that the strength in his left lower extremity has decreased and he has intermittent numbness on bottom of left foot and back of leg. See VA Examination, September 2018 at p.6 of 11. In January 2015, post-laminectomy, the Veteran reported resolution of his left leg pain and radicular pain. See SSA (2008-2015) at p.65 of 126; see also SSA (2015-2018) at p.162 of 163. In June 2016, the Veteran was afforded a peripheral nerve VA examination. The Veteran reported having continued symptoms despite having multiple lumbar surgeries. The examiner indicated that the Veteran had moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness in his left lower extremity. The examiner noted that the Veteran had no deep tendon reflexes in his left ankle and decreased sensory in his left foot/toes. The examiner noted that the Veteran had a mild limp as a result of his lumbar degenerative disc disease. The examiner indicated that the Veteran’s sciatic nerve had moderate incomplete paralysis on the left. The examiner also noted that the Veteran has increasing pain while sleeping during the night. The evidence of record supports a finding that the Veteran has had sciatic neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, although not excruciating for the entire period of the appeal. Because of sciatic nerve involvement and the organic changes affecting the Veteran’s left lower extremity, the Board finds that the level of disfunction is best assessed as moderate, associated with a 20 percent disabling. The Veteran does experience moderate pain, lower extremity numbness and loss of sensation, reduced reflex and muscle loss. The Veteran has a mild limp. As noted above in the section for the lumbar spine, the Veteran has limitations in extended walking and standing. A higher rating for moderately severe or sever incomplete paralysis is not warranted because the Veteran has use of the left lower leg in that he is able to stand and walk short distances and can perform daily activities. The Board places some probative weight on the assessment of the most recent examiner who described the level of incomplete paralysis as moderate because the examiner was able to clinically observe the Veteran and has experience in evaluating the relative level of loss of function among patients with this disability. As such, the Board finds, that rating of 20 percent disabling prior to June 28, 2016 and thereafter for the Veteran’s left lower extremity radiculopathy with sciatic nerve involvement is warranted and therefore, granted. Total Disability Rating Based on Individual Unemployability (TDIU) Controlling laws provide that a TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. See Id. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. Id. It is the established policy of VA that all Veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (a). 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. The Court has held that a Veteran’s advancing age and non-service-connected disabilities may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other Veterans with the same disability rating. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and maintain employment. Thus, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). 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. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). Finally, the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Although VA fully must consider “the effect of combinations of disability” under 38 C.F.R. § 4.15, regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran has the following service-connected disabilities: degenerative disc disease of the lumbar spine, rated as 10, 20, and 40 percent disabling as noted above; lumbar radiculopathy, rated as 20 percent disabling; scar of the lumbar spine, rated as 10 percent disabling. The combined rating is 20 percent prior to July 25, 2013; 40 percent thereafter prior to June 28, 2016, and 60 percent thereafter. As these disabilities all arise from the same injury and common etiology, the Veteran met the statutory criteria for a TDIU in June 2016. Social Security Administration records show that the Veteran reported earning a high school diploma and had work history as a law enforcement patrol officer, criminal investigator, and security officer at a mental health facility. He last worked in the latter occupation in December 2012. SSA initially denied disability benefits but on subsequent review granted benefits because of a back disorder. In an October 2014 decision, the SSA administrative law judge also cited knee pain, diabetes, muscle atrophy, attention deficit/hyperactivity disorder and depression as contributing disorders. The judge noted that one medical consultant found that the Veteran was not disabled but place greater weight on severe mental health limitations and on the oral testimony of a vocational consultant. The evidence provided by the vocational consultant is not of record. In the April 2019 supplemental statement of the case (SSOC), the RO noted that in September 2018, the Veteran was sent a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and a VA Form 21-4192, Request for Employment Information, and as of the date of the SSOC, the Veteran had not returned the completed forms. See SSOC, April 2019; see also Other, September 2018. A claim is a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 U.S.C. § 5101; 38 C.F.R. § 3.1(p). A claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 38 U.S.C. § 5107(a). “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). After review of the evidence of record, although the Veteran has been found to be unable to sit, walk or stand for a long period of time. There is no evidence to suggest that he is unable to secure or follow all forms of substantially gainful occupation as a result of his service-connected disabilities. (Continued on the next page)   Although the Veteran did not return the TDIU application (VA Form 21-8940) that was mailed to him, the Board has considered the entire record, including the Veteran’s educational background and his occupational history in law enforcement in both an administrative and physically demanding capacity and finds that the evidence is against a finding that the limitations due to his service-connected disabilities preclude him from securing or following any form of substantially gainful employment. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran’s mental health and cognitive deficits, knee, and diabetes limitations may not be considered as they are not service-connected disabilities. The Veteran does have substantial mobility limitations in extended sitting, standing, and walking because of limp, loss of muscle, reduced range of motion, and pain. Evidence does not show that the medications for pain are the cause for loss of cognition or concentration. The Board finds that the Veteran is not able to continue work as a patrol officer or field investigator. However, his education and law enforcement experience can be applied in the law enforcement field such as in stationary surveillance, dispatching, scheduling, and training where the employee can work in an office environment, close to rest facilities, and which permit breaks to stretch and move as he would at home. The mobility limitations are not so severe as to preclude leaving the home to travel to a workplace and use tools such as a telephone and simple computer. The SSA adjudicator cited a vocational expert who found no jobs in the economy which the Veteran could perform. However, the basis for the opinion is not of record, and the Board finds that the law enforcement occupations cited above that can be pursued in an office or control center environment are widely available and are suitable for persons with even severe mobility limitations such as those who are wheelchair bound. Continued next page Therefore, entitlement to TDIU is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.