Citation Nr: 1736640	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  07-15 996	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to a rating higher than 10 percent prior to May 17, 2007, and higher than 20 percent since May 17, 2007, for a fracture of the transverse process of the L4 lumbar vertebra with associated lumbar strain (lumbar spine disability).

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 1, 2016.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

T. Adams, Counsel


INTRODUCTION

The Veteran served on active duty from June 1969 through March 1971 and September 1990 through June 1991.  The Veteran also had additional service in the National Guard.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

During the pendency of the appeal, the RO issued a September 2007 rating decision that awarded a higher 20 percent disability rating for the Veteran's lumbar spine disability, effective from May 17, 2007.  The Veteran expressed ongoing dissatisfaction with the awarded partial grant and his desire to continue his appeal.  He is presumed to be seeking the maximum possible disability rating for his disability.  AB v. Brown, 6 Vet. App. 35, 38 (1993).

In September 2011, the Board remanded issues concerning the Veteran's entitlement to a disability rating higher than 20 percent for his lumbar spine disability and entitlement to a TDIU for further development.  During post-remand development, the Nashville RO issued an April 2016 rating decision wherein it granted service connection and separate disability ratings for radiculopathies in both lower extremities, effective from February 1, 2016 and assigned 20 percent initial disability ratings for each lower extremity.  The RO also granted to the Veteran a TDIU, also effective from February 1, 2016.

These matters were recently adjudicated in April 2017 at which time the Board denied entitlement to initial disability ratings higher than 20 percent for radiculopathy of right lower extremity radiculopathy and left lower extremity radiculopathy with left foot neuritis/neuralgia and remanded the claims for a rating higher than 20 percent for a lumbar spine disability and a TDIU prior to February 1, 2016, for further development.

In this regard, the Board notes that in a May 2017 Supplemental Statement of the Case, the RO readjudicated the issues of entitlement to a higher rating for the lumbar spine disability and a TDIU prior to February 1, 2016, in addition to ratings higher than 20 percent for the right and left leg disability.  However, the readjudication of the bilateral lower extremity disability ratings was erroneous as the Board previously denied these claims in April 2017.  Accordingly, these issues will not be addressed in the decision below. 


FINDINGS OF FACT

1.  Throughout the entire period on appeal, the Veteran's lumbar spine disability has been manifested by moderate limitation of the lumbar spine; there is no evidence that the Veteran's lumbar spine disability resulted in severe limitation of the lumbar spine; listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion; forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of intervertebral disc syndrome.

2.  The most credible, competent, and probative evidence of record demonstrates that the Veteran's service-connected disabilities alone are not of such nature and severity as to have prevented him from securing or following any substantially gainful employment, prior to February 1, 2016.


CONCLUSIONS OF LAW

1.  Prior to May 17, 2007, a rating of 20 percent, but no higher, is warranted for a low back.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a , Diagnostic Code (DCs) 5292-5295 (2002), DCs 5292-5295 (2003), DCs 5235-5243 (2016).

2.  Since May 17, 2007, the criteria for a disability rating higher than 20 percent for a lumbar spine disability, are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, DCs 5292-5295 (2002), DCs 5292-5295 (2003), DCs 5235-5243 (2016).

3.  Prior to February 1, 2016, the criteria for a TDIU are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In this case, there is no indication in this record of a failure to notify.  See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities.  38 U.S.C.A. § 5103A(c)(2).  All records pertaining to the conditions at issue are presumptively relevant.  See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)).  

In this case, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claims.  Pertinent medical evidence associated with the claims files consists of the available service treatment records, VA treatment records, and records from the Social Security Administration (SSA).

Next, relevant VA examinations were obtained in July 2006, August 2008, April 2011, April 2012, February 2016, and May 2017.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  VAOPGCPREC 11-95.

Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since the most recent VA examination.  The Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claims.  The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provide the information necessary to evaluate his lumbar spine disability and TDIU claim.  Hence, the Board finds that the VA examinations and medical opinions obtained in this case are adequate.  See Barr v. Nicholson, 21 Vet. App. 303   (2007) (VA must provide an examination that is adequate for rating purposes).

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159 and that there has been substantial compliance with its remands.  See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).

I. Increased Rating Claim

Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 
1 Vet. App. 589 (1991).  The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2016).  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2016).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45.  The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups.  See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 
In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss.  Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion.  However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45.  Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion.  See Mitchell, 25 Vet. App. 32.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present.  See Burton v. Shinseki, 25 Vet. App. 1 (2011). 

Historically, in February 1998, the RO granted service connection for a mechanical lower back injury, evaluated as 10 percent disabling effective February 26, 1996, pursuant to Diagnostic Code 5295 (lumbosacral strain).  May 1998 and May 2002 rating decisions continued the 10 percent rating.  In April 2006, the Veteran filed a claim for an increased rating for his lumbar spine disability.  A July 2006 rating decision continued the 10 percent rating.  A September 2007 rating decision increased the rating from 10 percent to 20 percent for a lumbar spine disability, effective from May 17, 2007 under DC 5235-5237. 

In this case, the Veteran contends that his service-connected lumbar spine disability is more severe than his evaluations indicate.

Since the initial grant of service connection for the Veteran's lumbar spine disability, the criteria for rating disorders of the spine were revised twice.  The former rating criteria were in effect through September 22, 2002, and then were revised beginning on September 23, 2002.  Under the second revisions, effective September 26, 2003, the diagnostic codes were renumbered and criteria for rating disorders of the spine were substantially revised.  See 38 C.F.R. § 4.71a, DCs 5235 to 5243. 
Generally, where the rating criteria are amended during the course of the appeal, both the former and the current schedular criteria are considered.  Should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply).

The amendments renumbered the Diagnostic Codes and created a General Rating Formula for Rating Diseases and Injuries of the Spine (General Formula), based largely on limitation or loss of motion, as well as other symptoms.  The amendments also allow for intervertebral disc syndrome (IVDS) to be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 

Prior to September 23, 2002, Diagnostic Code 5293 addressed the rating criteria for IVDS.  Mild IVDS warranted a 10 percent evaluation and moderate IVDS with recurring attacks warranted a 20 percent evaluation.  Severe IVDS with recurring attacks and intermittent relief warranted a 40 percent evaluation.  Pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief warranted a 60 percent evaluation.  This was the highest available schedular evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). 

The regulations regarding IVDS were revised effective September 23, 2002.  Effective that date, IVDS (still rated under Diagnostic Code 5293) was to be evaluated by one of two alternative methods: on the basis of total duration of incapacitating episodes over the previous 12 months, or, alternatively, by combining under 38 C.F.R. § 4.25 separate ratings for its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher rating.

Effective September 26, 2003, the Diagnostic Code for IVDS was renumbered as 5243 and the criteria for rating all spine disabilities, to include IDS, are now either determined either by the General Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.  When evaluating IVDS based upon incapacitating episodes, a 10 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of a least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  There is no higher schedular evaluation available under these diagnostic criteria.  An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5235-5243, Note (1) (2016).

For purposes of evaluations under DC 5243, an "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note 1 (emphasis added).  It is important for the Veteran to understand that his statements regarding bed rest cannot be used to provide him a higher evaluation under DC 5243.

Prior to September 23, 2002, slight limitation of motion of the lumbar spine warranted a 10 percent evaluation under Diagnostic Code 5292.  Moderate limitation of motion of warranted a 20 percent evaluation and severe limitation of motion of the spine warranted a 40 percent evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002).  These criteria were not changed by the amendments that became effective on September 23, 2002. 

Prior to September 23, 2002, lumbosacral strain with characteristic pain on motion warranted a 10 percent evaluation under Diagnostic Code 5295.  Lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral in a standing position warranted a 20 percent evaluation.  A 40 percent evaluation was warranted when the disability was severe, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002).  These criteria also were not changed by the amendments that became effective on September 23, 2002. 

Effective September 26, 2003, VA again revised the criteria for rating spinal disorders.  These revisions consist of a new rating formula encompassing such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness.  These changes are listed under Diagnostic Codes 5235-5243, with Diagnostic Code 5243 now embodying the recently revised provisions of the former Diagnostic Code 5293 (for intervertebral disc syndrome).  Effective September 26, 2003, spine disabilities can be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2016).  The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243.  The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined.  38 C.F.R. § 4.71a.

Under the General Rating Formula for Diseases or Injuries of the Spine, a 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar 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 thoracolumbar 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): 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): Round each range of motion measurement to the nearest five degrees.

Note (5): 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.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  Moreover, "chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2016).

When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2016). 

The RO addressed the new criteria in its July 2006 rating decision.  Accordingly, the Board may also consider these amendments without first determining whether doing so will be prejudicial to the Veteran.  Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

The Board has evaluated the Veteran's lumbar spine disability under multiple diagnostic codes to determine if there is any basis to increase an assigned rating. Such evaluations involve consideration of the level of impairment of a Veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities.  38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59.

Turning first to orthopedic manifestations of the Veteran's lumbar spine disability, on July 2006 VA spine examination, the Veteran presented with a history of a fracture of the transverse process of L4 and lumbar strain.  He complained of low back pain at the L5-S1 level, paraspinal area with stiffness of the low back, especially in weather changes.  Pain was treated with medication on an as needed basis and showed some effectiveness without side effects.  Resting and light stretching eased pain.  He used no assistive devices, such as cane or brace, and had not undergone surgery on his low back.

At that time he had been employed as a glass inspector for several years and was still able to perform his job.  He missed about 10 days of employment due to flare-ups of his back disability.  He was able to perform daily activities and walk continuously for 20-25 minutes.  However, he avoided heavy lifting and prolonged walking due to his back disability.

Range of motion (ROM) measurements indicated 80 degrees forward flexion limited further due to pain; 30 degrees extension with pain after 25 degrees, 30 degrees right and left lateral flexion without pain, and 30 degrees right and left lateral rotation without pain.  The combined ROM is 230 degrees.

There was tenderness at the L5-S1 level, paraspinal area; however, no effusion, erythematous change, muscle atrophy, or muscle spasm was noted.  He had lower back pain on motion.  Further examination of the spine showed no fixed deformities.  Musculature of the back was normal.  Following repetitive-use testing, there was no evidence of fatigue, incoordination, lack of endurance, or additional loss of motion due to pain.

An X-ray of the lumbosacral spine revealed mild osteophytic spurring of L2 through S1.  Mild joint space narrowing at the L5-S1 was noted.  There was no chronic compression condition.  Osteophytic spurring indicated degenerative changes.  

The examiner diagnosed status post lumbar strain and degenerative change of the lumbosacral spine by X-ray with residual pain and limitation of motion.  In the last 12 months, the Veteran had no episodes of incapacitation.

In a November 2006 statement, the Veteran complained that pain medication provided no relief.
In a February 2007 statement, the Veteran's friend "L.C." indicated that she had known him for over 12 years and indicated that his back disability had gradually worsened, especially during the past 2 years.  She stated that after a work day, he had to lie down to get some relief and confirmed that prescribed medications provided little relief.

In his May 2007 substantive appeal, the Veteran stated that his doctor restricted him from lifting anything over 25 pounds due to his back disability which also created difficulty at work in his position which required excessive lifting.

VA treatment records include an April 2007 report indicates full ROM of the spine with nontenderness.  A May 2007 orthopedic report which indicates that on examination the Veteran's paraspinal muscle was tense along the entirety of the spine.  Leg cross overs indicated pulling in the back.  Lateral flexion indicated full range of motion and pain with hyperextension.  ROM was limited by pain, but was within functional limits.  There was pain on repetitive use testing along the low back.  Lumbar facet joints of the L3-5 area were tender to palpation with spasm.  A flattened lumbar lordosis was observed.

The September 2007 rating decision awarded a 20 percent rating effective from May 17, 2007, based on the fact that the date was the earliest date the medical evidence showed a factual worsening of the disability.  This increase is based on the May 2007 orthopedic report.

VA treatment records include a July 2007 physical therapy report which indicates complaints of constant pain which increased with all ROM.  Examination indicated a flattened lumbar lordosis.  ROM measurements indicated flexion and extension within full limits.  Rotation to the right and side bend to the left decreased approximately 25% compared to contralateral side.  Repeated flexion increased pain along the low back and across the top of the pelvis.  Repeated extension also increased pain.  There was tenderness to palpation at the lumbar facet joints of the L3-5 area with spasm at palpation with the left greater than the right.  The assessment was chronic low back pain that appeared to originate from the lumbar facets with pain in both flexion and extension extending around the top of the pelvis. 

On August 2008 VA spine examination, the Veteran presented with a complaint of progressively worsening back pain treated with pain medications.  There was a history of fatigue, decreased motion, stiffness, weakness, and pain that was moderate to severe and daily and constant.  He had no spasms.  Flare-ups were severe and depended on his activity.  During flare-ups, he had a loss of function that required him to lie down.  With regard to IVDS, in the past 12 month period there were no incapacitating episodes.  He did not require the use of devices or aids for his lumbar spine disability.

On examination, there was pain with motion and tenderness, but there were no spasms, atrophy, guarding, or weakness.  Inspection of the spine indicated normal posture, but there was evidence of lumbar flattening.

ROM measurements indicated 60 degrees flexion with pain at 40 degrees, 20 degrees extension with pain, 22 degrees right lateral flexion with pain, 20 degrees left lateral flexion with pain at 14 degrees, 20 degrees left and right lateral rotation with pain.  The combined ROM is 162 degrees.  There was no additional loss of motion on repetitive-use of the joint. 

An X-ray examination indicated age-related multi-level degenerative bony/disc disease without evidence of fracture, subluxation, bone destruction, or soft tissue abnormality.  There was no evidence of spondylosis.  It was noted that he was unemployed since December 2006 due to physical problems which included lumbar spine and cervical spine disabilities, cervical radiculopathy, left carpal tunnel syndrome, and osteotomy of the left first toe.

The examiner diagnosed multilevel degenerative disc disease, L5 spine which had no effect on feeding; a mild effect on bathing, dressing, toileting, and grooming; and severe effects on chores, shopping, exercise, and recreation. 

The Veteran submitted diary entries dated from November 2008 to January 2009 which reflects complaints of low back pain which required him to lie down.  The record includes a January 2009 statement from the Veteran's friend regarding the severity of his back disability.

On April 2011 VA spine examination, the Veteran had weekly and severe flare-ups of his lumbar spine disability lasting 3 to 7 days precipitated by bending, lifting, and prolonged sitting or driving.  There was a history of urinary incontinence, urgency, frequency, and fecal incontinence which the examiner found were unrelated to the back disability. 

Symptoms of the back disability included fatigue, decreased motion, stiffness, weakness, spasm, and spine pain.  Pain was severe and constant and occurred daily.  There is no indication of incapacitating episodes of the lumbar spine.  He was unable to walk more than a few yards.

On examination, the only abnormal spinal curvature was lumbar lordosis.  There was guarding, pain with motion, tenderness, and weakness, but there was no spasm or atrophy.  ROM measurements of the thoracolumbar spine indicated 40 degrees flexion, 20 degrees extension, 15 degrees left lateral flexion, 20 degrees right lateral flexion, 15 degrees left lateral rotation, 15 degrees right lateral rotation, and objective evidence of pain on active ROM.  The combined ROM is 125 degrees.
Following repetitive use testing, there was objective evidence of pain, but no additional limitation of ROM.

Imaging studies indicated mild levoscoliosis of the lower thoracic upper lumbar spine as found on April 2007 X-ray examination.  Further loss of the lordotic curvature on lateral view was seen since the previous study.  The disk spaces and vertebral bodies were maintained with no evidence of compression fractures and small anterior osteophytes at the disk spaces were consistent with osteoarthritic changes.

The Veteran reported that his lumbar spine significantly limited his ability to perform activities of living secondary to pain and loss of function.  It caused decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength, lower extremity, and pain.  The examiner opined that he could not perform activities of daily living.

On April 2012 VA back Disability Benefits Questionnaire (DBQ) examination indicates that the Veteran presented with complaints of continuous pain in the low back exacerbated by prolonged standing, bending, turning, and twisting.  He was able to do some activities such as pushing a lawnmower, but could not do so for very long.  He denied any muscle weakness or muscle atrophy.  He felt overall that his general muscle size had decreased throughout his entire body, which he attributed to diminished physical activity; his prior job required heavy lifting.

Review of pertinent data included lumbosacral X-rays performed in April 2011 which showed mild levoscoliosis upper lumbar spine.  Disk spaces and vertebral bodies were maintained.  There was no evidence of compression fractures.  Small anterior osteophytes at the disk spaces consistent with osteoarthritic changes were noted.  No fracture identified.

The impression was chronic low back pain and the examiner opined that the Veteran's symptoms were likely musculoskeletal in etiology with arthritic changes in the lumbar spine.

On February 2016 VA back DBQ examination, the Veteran presented with complaints of pain rated from 4 to 7 out of 10 to 8 to 10 out of 10 on the pain scale.  Pain was continuous.  He had difficulty with prolonged sitting and driving/riding, standing, and walking.  He was unable to squat/kneel, perform repetitive bending/twisting of the spine, push/pull, operate foot/hand controls, or climb and he avoided stairs and inclines/declines.  Pain after flare-ups was only partially relieved by ceasing aggravating activity, self- imposed rest and/or avoidance of the activity, use of a recliner with elevated knees, and analgesic non-narcotic medication.  The examiner diagnosed degenerative arthritis of the spine, IVDS, fracture of the lumbar spine, degenerative joint disease (DJD), and lumbar intervertebral disc disease.  The Veteran stated that he was unable to perform the physical demand of his job due to his back disability.  

ROM measurements indicated 45 degrees flexion; 10 degrees extension, right lateral flexion, and left lateral flexion; and 30 degrees right and left lateral rotation.  The combined ROM is 135 degrees.

Pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time.  Flare-ups occurred daily secondary to activities of daily living.  There was pain noted on examination on rest/non-movement with forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation and left lateral rotation.  There was evidence of pain with weight bearing.  There was objective evidence of localized tenderness or pain on palpation of the joints associated soft tissues of the thoracolumbar spine.  There was objective evidence of localized tenderness or pain on palpation of the joints and associated soft tissue of the thoracolumbar spine.

Following repetitive-use testing, there was no additional limitation in ROM.  Pain, fatigue, weakness, lack of endurance, and incoordination significantly limited his functional ability with repeated use over a period of time.

On May 2017 VA back conditions DBQ examination, the Veteran presented with complaints of increasing back pain and loss of function/motion.  Pain was rated from moderate to severe, rated from 4 to 7 or 8 out of 10 on the pain scale.  Flare-ups occurred daily secondary to activities of daily living.  Flare-ups were described as aching, throbbing, burning, dull, grinding, sharp and soreness.  They were continuous and occurred with prolonged sitting and driving, standing, and walking.  He avoided reaching, working overhead, squatting/kneeling, pushing/pulling, stairs and inclines/declines.  He was unable to climb ladders, engage in prolonged operation of foot/hand controls, climb, or lift anything over 5 lbs.  There was functional loss or functional impairment of the thoracolumbar spine manifested by flare-ups.

ROM measurements were abnormal or outside of the normal range with 50 degrees flexion, 20 degrees extension, 15 degrees right lateral flexion, 12 degrees left lateral flexion, 30 degrees right lateral rotation, and 25 degrees left lateral rotation.  The combined ROM is 152 degrees.
The Veteran complained of flare-ups due to activities of daily living.  All ROM measurements caused pain.  There was evidence of pain with weight-bearing.  There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine.  There was pain and tenderness at L4-S1.  Following repetitive-use testing, there was no additional limitation in ROM.  Functional loss was caused by pain, fatigue, weakness, lack of endurance, and incoordination.  Guarding and/or muscle spasm of the thoracolumbar spine did not cause abnormal gait or spinal contour.  Back pain limited his ability to do yardwork. 

There was no ankylosis.  He had IVDS, but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.  He did not require assistance of any assistive device.  An X-ray examination of the thoracic spine indicated mild degenerative endplate osteophytes at multiple levels of the lumbar spine degenerative features were most significant at the lower facet joints, with mild features of degenerative disc disease.

In a May 2017 VA medical opinion, the VA examiner indicated that there was evidence of pain on passive range of motion testing and pain when the joint was used in non-weight bearing.  The examiner indicated that there are no opposing joints.  

The examiner diagnosed thoracic spine, degenerative joint disease; fracture of lumbar spine; DJD, lumbar intervertebral disc disease, and sciatic neuralgia.  The VA examiner indicated that the active duty L4 transverse fracture is healed and is no longer a contributing factor in this Veteran's back complaints.  He also indicated that since the prior VA examination, the Veteran complained of experiencing both increased pain and loss of function/motion of the back, but denied any new acute traumatic injury or specific aggravating event.

After review of the evidence, the Board finds that the Veteran is entitled to a disability evaluation of 20 percent for his lumbar spine disability for the entire period of this appeal.  The September 2007 rating decision which increased the rating from 10 percent to 20 percent effective May 17, 2007, was based in part on a May 2007 VA treatment record which indicated range of motion limited by pain.  In this regard, the Board can determine no distinction in the Veteran's orthopedic symptoms prior to and after May 17, 2007.  The medical evidence of record only confirms the Veteran's contentions.  The Board finds that it is factually ascertainable that the symptoms demonstrated in the May 2007 VA treatment record have existed throughout the period on appeal.

Applying the relevant former and revised rating criteria, the Board finds that his condition more approximated moderate limitation of the lumbar spine under Diagnostic Code 5292, in effect prior to September 23, 2002.  However, as the Veteran's symptoms do not indicate the severity necessary to warrant a rating higher than 20 percent under any of the applicable rating criteria, the Board finds that a rating in excess of 20 percent is not warranted under the former or revised rating criteria.

In this regard, the medical evidence of record does not indicate severe limitation of motion of the spine which warrants a 40 percent evaluation under DC 5292 or listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, which warrants a 40 percent rating under Diagnostic Code 5295, under the criteria in effect prior to September 23, 2002.  38 C.F.R. § 4.71a, DCs 5292, 5295 (2002).

Effective September 23, 2003, under the General Rating Formula for Diseases or Injuries of the Spine, a 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine.  However, the most probative evidence of record does not indicate that the Veteran's lumbar spine disability has ever been manifested by forward flexion to 30 degrees or favorable ankylosis of the entire spine.  Moreover, repetitive use testing performed during VA examinations did not indicate any additional limitation range of motion.  Forward flexion was limited to no less than 40 degrees as shown on April 2011 VA examination.  Accordingly, a rating of 40 percent for the Veteran's lumbar spine disability is not warranted under the criteria in effect since September 23, 2003. 

With regard to the DeLuca factors, the Board observes that the VA examiner and VA clinicians and therapists noted the Veteran's complaints of pain, difficulty with prolonged walking and sitting, problems with a variety of the activities of daily living, and limited range of motion due to his lumbar spine disability, and the Board has taken those complaints into consideration in its above discussion (it is important for the Veteran to understand that these problems are the basis for the 20% rating).  However, the Board finds that the evidence does not support a finding that the Veteran's functional loss causes additional disability that approximates a 40 percent rating under the former or revised criteria for rating diseases or injuries of the spine.
 
While the Board accepts the contentions of the Veteran that his lumbar spine disability cause him to experience pain, functional loss, and limitation of motion, providing the basis for the 20% finding, the Board has taken that into account in its consideration of the range of motion of the Veteran's thoracolumbar spine.  The rating schedule does not require a separate rating for pain itself.  Spurgeon v. Brown, 10 Vet. App. 194 (1997).  Accordingly, greater ratings are not warranted based on functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.

In sum, the Board finds that the orthopedic manifestations of the Veteran's thoracolumbar spine disability do not warrant a rating in excess of 20 percent at any time under the former or revised criteria for rating diseases and injuries of the spine.

While the Board understands the Veteran central concern that he has a severe back disability manifested by limited movement, pain, and problems with prolonged walking and standing, it is important for Veteran to also understand that without some problems associated with his back there would be no basis for a compensable evaluation (zero), let alone a 20 percent throughout the entire period on appeal.  Without consideration of the problems he has cited and the pain and other issues he has with his back at this time, the current evaluation could not be justified.

Turning next to neurological manifestations of the Veteran's lumbar spine disability, on July 2006 VA spine examination, the Veteran had no bladder or bowel complaints and was able to walk without the need of an assistive device.  On August 2008 VA spine examination, a review of systems indicated erectile dysfunction that was unrelated to his back disability.

On April 2012 VA examination, the Veteran denied any bowel or bladder changes due to his back disability.  On May 2017 VA examination, there were no neurologic abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems.

Accordingly, with the exception of the Veteran's previously rated bilateral radiculopathy of the lower extremities (as noted in the Introduction), no compensable rating for bladder or bowel impairment related to the Veteran's back disability is warranted at this time.  The evidence show that any bladder or bowel problems associated with his spine has been diagnosed at any point during the appeal.  Accordingly, the Board does not find that a separate rating for bladder or bowel impairment related to the Veteran's lumbar spine disability is warranted at any time during the pendency of the appeal.  Moreover, any erectile dysfunction has been found to be unrelated to his lumbar spine disability.
 
The Board has also considered whether the Veteran is entitled to a rating higher than 10 percent prior to May 17, 2007, or a rating higher than 20 percent since May 17, 2007, for his back disability under Formula for Rating IVDS.  In this regard, the record reflects diagnoses of IVDS.  However, the Board finds that clinical evidence does not show the bed rest prescribed by a physician or that the Veteran experienced IVDS at any point during the appeal period.  Whether under the former or revised rating criteria, he has not experienced recurrent attacks or incapacitating episodes of IVDS to warrant a higher rating under these criteria.  Accordingly, a rating in excess of 10 percent prior to May 17, 2007 or a rating higher than 20 percent since May 17, 2007, under Diagnostic Code 5293 (2002, 2003) or the Incapacitating Episodes Formula of Diagnostic Codes 5235-5243 is not warranted.

TDIU Claim

The Veteran contends his service-connected low back and left foot disabilities render him unable to retain or maintain gainful employment.  As noted in the Introduction, an April 2016 rating decision granted a TDIU, effective from February 1, 2016.  The Veteran seeks a TDIU prior to February 1, 2016.

In a February 2008 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, he stated that he was unemployable due to a service-connected back disability and foot surgery and that he last worked in December 2006.
 
In a July 2010 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, he stated that he has been unemployed since 2006 due to a left foot disability.  He stated that he was last employed as a truck driver in December 2006.  He had 2 years of high school before earning a GED in September 1990.

Total disability is considered to exist when there is any impairment 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) (2016).  A total disability rating for compensation purposes may be assigned on the basis of individual unemployability. When, there are two or more disabilities, at least one disability must be rated 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more.  38 C.F.R. § 4.16 (a) (2016). 

Prior to February 1, 2016, the Veteran's service-connected disabilities are bilateral hearing loss, rated as 30% disabling; a lumbar spine disability, rated as 20% disabling; tinnitus, rated 10% disabling, and left foot neuritis, rated 10% disabling, for a combined rating of 60%.  Because the Veteran does not have one service-connected disability rated as at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16 (a) are not met.  Nevertheless, the Board must determine whether the Veteran's TDIU claim should be submitted to the Director of Compensation and Pension service for consideration of TDIU on an extraschedular basis.  See 38 C.F.R. § 4.16 (b).

Consequently, the remaining question in this case is whether the Veteran was, in fact, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, so that TDIU could be assigned pursuant to 38 C.F.R. § 4.16 (b).  The Board emphasizes that entitlement to an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) and a TDIU rating under 38 C.F.R. § 4.16 (b), although similar, are based on different factors.  Kellar v. Brown, 6 Vet. App. 157 (1994).  An extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities.  Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required.  In contrast, 38 C.F.R. § 4.16 (b) merely requires a determination that a particular Veteran is actually unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities.  VAOPGCPREC 6-96 (1996), 61 Fed. Reg. 66749 (1996).  The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered, while nonservice-connected disability is not considered.  38 C.F.R. § 4.16 (b) (2016).

The Board itself cannot assign TDIU under 38 C.F.R. § 4.16 (b) in the first instance.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Stanton v. Brown, 5 Vet. App. 563 (1993); Fanning v. Brown, 4 Vet. App. 225 (1993). 

Because the Board itself cannot assign an extraschedular rating in the first instance, the Board must specifically adjudicate whether to refer a case to the Director of the Compensation and Pension Service (Director) for consideration of the assignment of an extraschedular rating when the issue is either raised by the claimant or is reasonably raised by the evidence of record.  Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008).  If, and only if, the Director determines that an extraschedular rating is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits.  Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director determines that an extraschedular rating is not warranted.  Anderson v. Shinseki, 22 Vet. App. 423 (2009); Floyd v. Brown, 9 Vet. App. 88 (1996); 38 U.S.C.A. §§ 511 (a), 7104(a) (West 2014).

Here, pursuant to the Board's April 2017 Remand, this issue was considered by the Director (in an undated memorandum) noted that the Veteran worked as a glass inspector from 1975 to December 2006 and received his GED in 1990.  He noted that according to the Veteran's employer, he worked for a mirror company from June 1968 to November 2007 and his duties consisted of tailing and inspecting glass.  No workplace concessions were made for his disability and his physician would not allow him to return to work.  The Director considered a May 2008 SSA determination that found him disabled from December 2006 due to service-connected and non-service connected disabilities.  Additional evidence considered by the Director included VA spine and foot examinations. 

However, the evidence determined that the evidentiary record failed to demonstrate that the Veteran was unable to secure or follow substantially gainful employment as a result of his service-connected disabilities.  He stated that although the SSA found the Veteran disabled for gainful activity, that decision was only partially predicated upon service-connected disabilities.  He determined that review of the record failed to show that the service-connected disabilities are so severe as to preclude employability.  

It is readily acknowledged that the service-connected disabilities are productive of functional loss and some economic impairment; however, the symptoms associated with the primary service-connected disabilities, to include decibel losses and limited motion of the lumbar spine with pain, do not render the Veteran unable to secure or following substantially gainful employment.  Although the record contains clinical assessments that the lumbar spine disability affected the Veteran's ability to work, the assessments did not indicate the veteran was unemployable, nor was the inability to secure or follow substantially gainful employment demonstrated by the objective findings of record.

The Director concluded that based on the evidence of record, entitlement to TDIU on an extra-schedular basis is not warranted.  While the RO denied the claim based on that determination, that is an issue for appellate review for the Board on a de novo basis because that has already been considered by the Director.  Fisher v. Brown, 4 Vet. App. 405 (1993).  Thus, entitlement to a TDIU rating under 38 C.F.R. § 4.16 (b) will be considered.

Where, as in this case, a Veteran fails to meet the applicable percentage standards, an extraschedular rating is for consideration where the Veteran is found unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16 (b) (2016).  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 (2016); Van Hoose v. Brown, 4 Vet. App. 361 (1993).  When reasonable doubt arises as to the degree of disability, that reasonable doubt will be resolved in a Veteran's favor.  38 C.F.R. § 4.3 (2016).
Substantially gainful employment is an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran's earned annual income.  Faust v. West, 13 Vet. App. 342 (2000).  The central inquiry in determining whether a Veteran is entitled to TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Derwinski, 5 Vet. App. 524 (1993).

The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances.  Ferraro v. Derwinski, 1 Vet. App. 326 (1991). 

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, that reasonable doubt will be resolved in favor of the Veteran.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102 (2016).

The evidence of record includes a February 2007 letter from Veteran's employer completed by a company nurse indicates that he had a job tailing and inspecting glass.  On occasion he came to the office complaining of back pain.  He did not report any work-related injury to the nurse, but stated that he had back problems for some time.  

In a February 2008 statement, the Veteran's former employer indicated that he last worked in December 2006 doing tailing and inspecting of glass and that a doctor would not allow return to work.

As previously addressed by the Director, the May 2008 SSA decision states that the Veteran had not engaged in substantial gainful activity since December 2006 and severe impairments included back and neck disabilities, left carpal tunnel syndrome osteotomy of the left first toe.  It was determined that he had residual functional capacity to perform the full range of sedentary work, but was unable to perform any past relevant work and his acquired job skills did not transfer to other occupations.  He was deemed disabled since December 2006.

On March 2011 VA feet examination, the Veteran indicated that he retired in December 2006 due to left foot surgery.

A June 2011 VA general medical examination indicates a diagnosis of left foot bunionectomy and a related chronic foot disability due to standing.  The examiner also diagnosed lumbar strain with and increased pain with most daily required activities requiring lifting, etc.  The VA examiner opined that although the Veteran had ongoing lumbar pain, he was employable and could obtain a job as a cashier or telemarketer or any position not requiring lifting or ambulation.
On February 2016 and May 2017 VA examination the Veteran indicated his employment history was noted to include manufacturing, truck driver, and retail sales.  He was out of the work force since 2010 as he was unable to perform the physical demands of the job.

The Board finds that the evidence of record is insufficient to show that the Veteran was unable to secure or follow a substantially gainful occupation because of his service-connected disabilities.  A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  In this case, the SSA records indicate that his employability was affected, by both service-connected and non-service connected disabilities.  While the Board does not disagree that service-connected back and left foot disabilities have impacted his ability to work to some degree, as the Veteran has claimed, the Board finds that the preponderance of the evidence is against a finding that the service-connected lumbar spine and left disabilities in combination prevented him from securing or following a substantially gainful occupation.  Therefore, the Board finds that the Veteran does not meet the requirements for TDIU.

In considering whether TDIU is warranted, the Board has also considered the Veteran's statements that his service-connected disabilities made him unemployable.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify).  The Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, he is not competent to identify to the extent to which service-connected disabilities make him unemployable according to the pertinent VA regulations.  Those determinations require training, which the Veteran is not shown to have. 

Therefore, as the evidence does not establish that the Veteran was unemployable due to his service connected disabilities, the appeal is denied.

A Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the rating of the individual conditions fails to capture all the service-connected disabilities experienced.  Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  However, the medical evidence in this case provides particularly negative evidence against that finding.  It is important for the Veteran to understand that a combined 60 percent rating represents a recognized, significant disability.  If the Board did not consider the Veteran's statements there would be a very limited basis for the current finding of 60 percent, let alone a higher rating, as the objective medical evidence, rather than supporting his claim, has, as a whole, consistently provided evidence against his contentions.  While the Board has carefully reviewed the Veteran's statements, the problems that the Veteran has indicated he has are consistent with the combined 60 percent rating, but not consistent with a finding that the Veteran could not work due to service connected disabilities, either individually or in combination. 

Accordingly, there is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple service-connected disabilities.

The Board finds that the claim for entitlement to TDIU, must be denied.  The Board finds that the preponderance of the evidence is against the claim, and the claim must be denied.  38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Prior to May 17, 2007, a rating of 20 percent, but no higher, for a lumbar spine disability, is granted.

Since May 17, 2007, a rating higher than 20 percent, for a lumbar spine disability, is denied.

A TDIU is denied.


____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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