Citation Nr: 21022369 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 10-45 017 DATE: April 15, 2021 ORDER For the rating period from January 14, 2008 to January 23, 2009, an increased disability rating in excess of 20 percent for the lumbosacral strain with degenerative changes (lumbar spine disability) is denied. For the rating period from January 23, 2009 forward, an increased disability rating in excess of 40 percent for the lumbar spine disability is denied. A higher initial disability rating in excess of 10 percent for right lower extremity radiculopathy is denied. A higher initial disability rating in excess of 10 percent for left lower extremity radiculopathy is denied. For the period from January 14, 2008 to March 2, 2011, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. For the rating period from January 14, 2008 to January 23, 2009, the lumbar spine disability has been manifested by pain and limitation of forward flexion greater than 30 degrees, without ankylosis, limitation of forward flexion to 30 degrees or less, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12-month period. 2. For the rating period from January 23, 2009 forward, the lumbar disability has not been manifested by ankylosis of the thoracolumbar spine and/or incapacitating episodes requiring physician ordered bed rest having a total duration of at least six weeks during a 12-month period. 3. For the entire initial rating period on appeal from January 14, 2008, the right lower extremity radiculopathy has not manifested in moderate incomplete paralysis of the sciatic nerve. 4. For the entire initial rating period on appeal from January 14, 2008, the left lower extremity radiculopathy has not manifested in moderate incomplete paralysis of the sciatic nerve. 5. For the period from January 14, 2008 to March 2, 2011, the Veteran has been unable to maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. For the rating period from January 14, 2008 to January 23, 2009, the criteria for an increased disability rating in excess of 20 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. For the rating period from January 23, 2009, the criteria for an increased disability rating in excess of 40 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. For the entire initial rating period on appeal from January 14, 2008, the criteria for a higher initial disability rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. For the entire initial rating period on appeal from January 14, 2008, the criteria for a higher initial disability rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § § 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. Resolving reasonable doubt in the Veteran’s favor, for the period from January 14, 2008 to March 2, 2011, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from October 1977 to February 1978. This matter was previously before the Board in October 2019, at which time the Board remanded the appeal for the Veteran to undergo another VA examination, which was provided in January 2020. The matter has been properly returned to the Board for adjudication. In a July 2020 VA Form 9, the Veteran requested a travel Board hearing; however, the hearing request was subsequently withdrawn by the Veteran in a November 2020 correspondence. As such, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 1. Rating the lumbar spine disability from January 14, 2008 to January 23, 2009 For the rating period on appeal from January 14, 2008 to January 23, 2009, the Veteran is in receipt of a 20 percent disability rating for the service-connected lumbosacral strain with degenerative changes (lumbar spine disability) under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran generally contends that an increased disability rating for the lumbar spine disability is warranted. See April 2010 Notice of Disagreement. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula 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. The General Rating Formula provides a 10 percent disability rating 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. A 20 percent rating is provided 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 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. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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 lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned 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 disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. After a review of all the lay and medical evidence of record, the Board finds that, for the rating period from January 14, 2008 to January 23, 2009, the criteria for an increased disability rating in excess of 20 percent for the lumbar spine disability have not been met or more nearly approximated. Throughout the rating period on appeal from January 14, 2008 to January 23, 2009, the lumbar spine disability has been manifested by pain, stiffness, and limitation of forward flexion greater than 30 degrees, without ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 30 degrees or less (criteria for a 40 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12 month period (criteria for a 40 percent rating). An August 2007 VA treatment record reflects examination of the lumbar spine revealed minimal losses in motion in forward flexion and extension. A December 2007 VA treatment record shows the Veteran reported worsening chronic low back pain; an examination of the lumbar spine revealed full range of motion. The Veteran underwent a VA examination in March 2008. Examination revealed forward flexion measured to 50 degrees, with a combined range of motion of 125 degrees in the thoracolumbar spine. The March 2008 VA examiner noted painful motion, tenderness, and muscle spasms across the lumbar spine, and that repetitive use caused increased symptoms without additional changes noted on examination. The VA examiner noted the Veteran did not experience any incapacitating episodes of back pain in the past year. A May 2009 VA treatment record shows the Veteran complained of persistent back pain. Upon examination, the Veteran was found to have a mildly antalgic gait, stabilized with use of a cane. The May 2009 VA provider noted that range of motion in the lumbar spine was mildly limited in all ranged and that there were diffuse muscle spasms in the lower back. After considering all the evidence, the Board finds that the weight of the evidence demonstrates that the lumbar spine disability has not manifested in ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 30 degrees or less (criteria for a 40 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least four weeks during a 12 month period (criteria for a 40 percent rating). The overall disability picture does not demonstrate that the lumbar spine was limited to 30 degrees or less of forward flexion. At most, the March 2008 VA examiner measured forward flexion was limited to 50 degrees. For the above reasons, the Board finds that, for the rating period from January 14, 2008 to January 23, 2009, the weight of the evidence is against the assignment of an increased disability rating for the lumbar spine disability in excess of 20 percent. 38 U.S.C. § 5107; 38 C.F.R. § § 4.3, 4.7. 2. Rating the lumbar spine disability from January 23, 2009 For the rating period on appeal from January 23, 2009, the Veteran is in receipt of a 40 percent disability rating for the lumbar spine disability under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. After a review of all the lay and medical evidence of record, the Board finds that, for the entire rating period on appeal from January 23, 2009, the criteria for an increased disability rating in excess of 40 percent for the lumbar spine disability have not been met or more nearly approximated. The medical evidence of record does not show complete ankylosis of the entire thoracolumbar spine or indicate that there were incapacitating episodes requiring physician ordered bedrest over a 12-month period. November 2010, November 2012 January 2020 VA examination reports reflect negative findings for ankylosis in the thoracolumbar spine or incapacitating episodes requiring physician ordered bedrest over a 12-month period. The record also includes an August 2012 private examination report from Dr. D.J. that reflects findings of painful motion on flexion, extension, rotation to the right, and rotation to the left. Dr. D.J. noted the Veteran is unable to perform activities of daily living due to constant pain with intermittent exacerbations, and noted positive findings for tenderness, muscle weakness, muscle spasms, and abnormal gait. However, Dr. D.J. did not measure the functional impairment caused by the lumbar spine disability in ranges of motion, nor did Dr. D.J. find unfavorable ankylosis of the entire thoracolumbar spine. Furthermore, Dr. D.J. indicated negative findings for prescribed bedrest due to IVDS. Additionally, VA treatment records throughout the rating period on appeal also do not indicate unfavorable ankylosis of the entire thoracolumbar spine (criteria for a 50 percent rating), or that the Veteran has experienced incapacitating episodes requiring physician ordered best rest with a total duration of at least 6 weeks during a 12 month period (criteria for a 60 percent rating). For these reasons, the Board finds that the preponderance of the evidence is against the assignment of an increased disability rating for the lumbar spine disability in excess of 40 percent for the rating period from January 23, 2009. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 3. Rating the right lower extremity radiculopathy 4. Rating the left lower extremity radiculopathy For the initial rating period on appeal from January 14, 2008, the Veteran is in receipt of initial 10 percent disability ratings for the right and left lower extremity radiculopathies under Diagnostic Code 8520. 38 C.F.R. § 4.124a. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a). Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. § § 4.2, 4.6. In rating diseases of the peripheral nerves, the term “incomplete paralysis” 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. 38 C.F.R. § 4.124a. After review of the lay and medical evidence of record, the Board finds the weight of the evidence is against finding that the right and left lower extremity radiculopathies more nearly approximated moderate incomplete paralysis of the sciatic nerve so as to warrant higher 20 percent ratings for the initial rating period from January 14, 2008. For the initial rating period from January 14, 2008, the right and left lower extremity radiculopathies have been manifested by wholly sensory symptoms involving the sciatic nerve, more nearly approximating mild incomplete paralysis of the sciatic nerve. VA treatment records from 2007 to 2009 show the Veteran complained of numbness, tingling, and pain in the bilateral lower extremities. Examination of the lower extremities revealed nearly full to full muscle strength and normal deep tendon reflexes. See e.g. September 2007 VA treatment record; December 2007 VA treatment record; May 2009 VA treatment records. A May 2011 VA treatment record reflects examination of the Veteran revealed good range of motion in the hips, knees, feet, and ankles, good dorsalis pedal pulse bilaterally, normal motor strength, and no atrophy noted in the lower extremities. The Veteran was provided with a VA examination in November 2012, the examination report for which shows normal muscle strength in the right and left lower extremities, normal deep tendon reflexes, and negative findings for any atrophy in either the right or left lower extremities. The November 2012 VA examiner noted decreased sensation in the right and left lower legs/ankles and feet/toes. The VA examiner noted the Veteran’s right and left lower extremity radiculopathies had been manifested by symptoms of mild intermittent pain, mild paresthesias/ dysesthesias, and mild numbness, and assessed mild right and left lower extremity radiculopathies. The Veteran underwent another VA examination in January 2020, during which the Veteran reported back pain that radiates down the right and left lower extremities, causing tingling and pain in the legs. The January 2020 VA examiner noted positive findings for radiculopathy in the right and left lower extremities with symptoms of mild constant pain, mild intermittent pain, and mild paresthesias/dysesthesias. The VA examiner noted findings of full muscle strength and normal deep tendon reflexes in the right and left lower extremities, without muscle atrophy, but noted decreased sensation in the right and left thighs and feet/toes. Ultimately, the January 2020 VA examiner assessed the severity of the right and left lower extremity radiculopathies as mild. A January 2020 VA treatment record reflects the Veteran requested the VA provider sign a Bureau of Motor Vehicles (BMV) form for the Veteran. The January 2020 VA provider indicated that the Veteran would need to be able to safely maneuver a vehicle in spite of his right and left lower extremity neuropathy. The Veteran reported symptoms of numbness and tingling in the right and left feet and that he takes medication regularly to treat the lower extremity symptoms, but denied that such symptoms causes him to fall. Upon examination of the Veteran, the January 2020 VA provider noted a foot examination was completed with filament, and found that good sensation noted throughout both feet. Upon the satisfactory examination of the right and left lower extremities, the January 2020 VA provider completed the Veteran’s BMV form as requested. The record includes an August 2012 private examination report from Dr. D.J., wherein Dr. D.J. notes positive findings for severe right and left lower extremity radiculopathy with marked muscular atrophy. However, Dr. D.J.’s findings are not supported by contemporaneous VA or private treatment records, such as the November 2012 VA examination the Veteran underwent several months following Dr. D.J.’s private examination, discussed above. Subsequent VA examinations and VA treatment records also contradict Dr. D.J.’s findings of severe radiculopathy with marked muscular atrophy, including the January 2020 VA treatment record that shows the Veteran’s right and left lower extremity radiculopathy symptoms were not severe, and were mild enough that they would not interfere with the Veteran’s ability to operate a motor vehicle. As such, the Board finds that the August 2012 private examination report is outweighed by the other more competent and probative medical evidence of record. The record also contains an October 2014 private medical letter from Dr. R.L., wherein Dr. R.L. provides the opinion that the Veteran’s right and left lower extremity radiculopathies have manifested in a moderate level of radicular pain and exacerbations that affect function, at times severely. However, Dr. R.L.’s opinion is based solely on the review of medical evidence, and not an examination of the Veteran. Additionally, Dr. R.L. did not opine on whether the Veteran’s right or left lower extremity radiculopathies have manifested in any degree of paralysis of the sciatic nerve. For these reasons, the Board finds that the October 2014 private medical letter is of little probative value in determining the current severity of the right and left lower extremity radiculopathies. Based on the foregoing, the Board finds that the weight of the lay and medical evidence of record demonstrates that the Veteran’s right and left lower extremity radiculopathies have not more nearly approximated the criteria for 20 percent ratings under Diagnostic Code 8520 for symptoms of moderate incomplete paralysis of the sciatic nerve for any part of the initial rating period from January 14, 2008; therefore, higher initial disability ratings in excess of 10 percent are not warranted under Diagnostic Code 8520 for the right and left lower extremity radiculopathies. 38 C.F.R. § § 4.3, 4.7. 5. A TDIU from January 14, 2008 to March 2, 2011 The Veteran contends that the service-connected lumbar spine disability and right and left lower extremity radiculopathies prevented him from maintaining substantially gainful employment. See January 2009 VA Form 21-8940. The Veteran is already in receipt of a total disability rating due to individual unemployability (TDIU) for the period from March 2, 2011 forward; thus, the Board will only consider the claim for a TDIU for the period from January 14, 2008 to March 2, 2011. A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Individual unemployability must be determined without regard to any non service connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. As of January 14, 2008, the Veteran has been service-connected for the lumbar spine disability (20 percent disabling), the right lower extremity radiculopathy (10 percent disabling), and the left lower extremity radiculopathy (10 percent disabling). As of January 23, 2009, the service-connected lumbar spine disability was assigned a 40 percent disabling. As such, the Veteran’s service-connected disabilities have not met the combined disability rating criteria for TDIU eligibility under 38 C.F.R. § 4.16(a). Because the combined disability rating did not meet the combined percentage standards of 38 C.F.R. § 4.16(a), the claim for a TDIU may be considered only under 38 C.F.R. § 4.16(b). Pursuant to the Board’s September 2014 remand, the appeal for a TDIU was referred to the Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). In February 2018, the Director of Compensation and Pension Service adjudicated and denied a TDIU under 38 C.F.R. § 4.16(b). Because the appeal for a TDIU under § 4.16(b) has already been reviewed and denied by the Director of Compensation and Pension Service, the Board may consider, de novo, whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16(b), which provides that a veteran who is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of Compensation and Pension Service is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board); Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (the Board reviews the Director of Compensation and Pension Service’s extraschedular decision de novo, and may assign an extraschedular rating when appropriate). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the service-connected lumbar spine disability and right and left lower extremity radiculopathies have rendered the Veteran unable to maintain substantially gainful employment for the period from January 14, 2008 to March 2, 2011. The January 2009 VA Form 21-8940 shows the Veteran has a high school education and last worked as a mail processing clerk for the U.S. Postal Service until 2003. The Veteran contends he left his position on disability retirement. Social Security Administration (SSA) records reflect the Veteran had been awarded Social Security Disability Insurance (SSDI) in 1994 due to non-service-connected Chron’s disease and depression. However, a January 2009 SSA record shows the Veteran’s SSDI was continued due to the disc bulge in his lumbar spine that causes severe pain requiring the use of narcotics. A March 2008 VA examination report reflects the Veteran had been disabled from his normal job for the last 4 to 5 years due to symptoms of the service-connected lumbar spine and right and left lower extremity radiculopathy symptoms. An August 2009 VA treatment record shows the Veteran was seen for pain management for lumbar radiculopathy and reported that he stopped working due to depressive symptoms and that pain and depression symptoms were the primary barriers preventing his return to work. A May 2011 VA treatment record shows the Veteran reported back pain had been more persistent and severe recently and that he was most comfortable lying flat; any walking or lifting tended to exacerbate his pain. The Veteran was observed using a cane to ambulate. A November 2012 VA examination report also contains the VA examiner’s findings that the lumbar spine symptoms interfere with sitting, standing, weight bearing, which impact the Veteran’s ability to work. The November 2012 VA examiner found the Veteran cannot do any heavy physical work and that he would be limited to sedentary work. Overall, the record reflects symptoms of the lumbar spine disability and right and left lower extremity radiculopathies would preclude the Veteran from maintaining substantially gainful employment in a position similar to that of a mail processing clerk, for which he has training and experience. Resolving reasonable doubt in favor of the Veteran, the Board finds that the combination of symptoms and functional impairment caused by the service-connected lumbar spine disability and right and left lower extremity radiculopathies have prevented the Veteran from maintaining substantially gainful employment for the period from January 14, 2008 to March 2, 2011. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Choi, 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.