Citation Nr: 18132264
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 08-33 751A
DATE:	September 6, 2018
ORDER
Entitlement to an initial evaluation in excess of 20 percent prior to August 21, 2017 for lumbar spine degenerative disc disease (DDD) is denied.
Entitlement to an initial evaluation in excess of 40 percent from August 21, 2017 for lumbar spine DDD is denied.
Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 21, 2017 is denied.
FINDINGS OF FACT
1.   Prior to August 21, 2017, the lumbar spine disability has not been manifested by forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes lasting a total duration of at least 4 weeks but less than 6 weeks during the last 12 months.
2.   For all periods relevant to this appeal, the Veteran’s lumbar spine DDD has been manifested primarily by back pain, muscle spasms, and decreased thoracolumbar flexion to no less than 35 degrees; however, it was not productive of ankylosis or Intervertebral Disc Syndrome (IVDS).
3.   Prior to August 21, 2017, the Veteran was not precluded from securing or following all forms of substantially gainful employment due to his service-connected disabilities.
CONCLUSIONS OF LAW
1.   Prior to August 21, 2017, the criteria for an initial rating in excess of 20 percent for lumbar spine DDD have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.71a, Diagnostic Codes (DC) 5242, 5003.
2.   From August 21, 2017, the criteria for an initial evaluation in excess of 40 percent for lumbar spine DDD have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.71a, DC 5242, 5003.
3.   Prior to August 21, 2017, the criteria for TDIU have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 1989 to December 1986.
In December 2012, November 2013, and August 2017, the Board remanded the claim for further development.
In his July 2016 Substantive Appeal, the Veteran requested a Board hearing.  The Veteran was scheduled for the requested hearing on August 22, 2017.  In June 2017, the Veteran withdrew his request for a Board hearing.  Thus, his request for a Board hearing is considered withdrawn.  38 C.F.R. § 20.704(e).

Increased rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  Disabilities must be reviewed in relation to their history.  Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 
A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as “staged” ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
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.  38 C.F.R. § 4.7.  It is the defined and consistently applied policy of the Department of Veterans Affairs 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. 
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans’ Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.”  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).
The spine is rated under 38 C.F.R. § 4.71a, DCs 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating IVDS based on incapacitating episodes.  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 and treatment by a physician.  Schedular disability ratings are assigned for the spine from 100 percent to 10 percent according to the formulas as follows:
Under the General Formula, a 20 percent rating contemplates 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.  
Under the General Formula, a 40 percent rating contemplates forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 
Under the General Formula, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine.  There is no equivalent rating under the IVDS Formula.
Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  There is no equivalent rating under the General Formula. 
Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine.  There is no equivalent rating under the IVDS Formula.
In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Although pain may cause functional loss, pain itself does not constitute functional loss.  Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).  38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158 (2016).  Associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a (General Formula, Note 1).
Analysis
The Veteran contends that his lumbar spine disability is more severe than the ratings depict.
In May 2004, the Veteran was afforded a VA examination to determine the nature and etiology of his lumbar spine disability.  The Veteran stated that during basic training, he injured his back and was diagnosed with mechanical back syndrome.  The Veteran was discharged.  The pain persisted.  He did not use any medical aids.  He was diagnosed with a herniated lumbar disc and nine months prior to the VA examination, he had surgery.  Since the surgery, the Veteran’s back pain persisted and radiated to both legs.
The examiner diagnosed the Veteran with lumbar spine DDD with radiculitis.  The Veteran’s forward flexion was to 60 degrees, right and left bending to 20, extension to 0 degrees, and right and left rotation to 10 degrees.  The Veteran had good heel and toe rising.  He had a positive straight leg raising test at 60 degrees, bilaterally.  After repeated motion, the Veteran’s forward flexion was to 50 degrees.  The Veteran’s range of motion (ROM) was limited by pain, fatigue, weakness, and lack of endurance which did not appear to be a cause or a factor in reduction of his ROM.  There were no reflex, sensory, or motor defects.  The Veteran had no weakness.  He had good gluteal tone, and his pelvis was level.  The Veteran could perform activities of living.
In September 2004, the Veteran was seen for lumbar pain which was interfering with his ability to perform his functional activities of daily living and ambulate safely.  Prolonged standing and ambulation increased his back pain and muscle spasms.  He experienced limitation in his trunk ROM forcing him to sit and rest.  The Veteran did not respond to ice, rest, heat, or medical prescription.  He could transfer himself from bed to chair, sit to stand, toilet, and shower.  At the time of evaluation, the Veteran’s pain was 6/10 with motion and 5/10 at rest in lumbosacral (L/S).  The Veteran presented with grade II spasms in his paraspinal L/S muscles and tenderness to palpation in L34-S1.  Trunk flexion was to 35 degrees, extension from zero to five degrees, and right and left lateral bending was from 10-15 degrees.  His bilateral hip gross manual muscle test (MMT) was 3/3+/5, bilateral knees and ankles were 3/3+6.  Gross MMT of trunk was 3/5, straight leg raise (SLR) was +at 35.  The Veteran had transfer difficulties with increased time, several attempts were needed due to trunk pain, stiffness, and weakness.  His posture was fair with decreased lumbar lordosis, rounded shoulders, and increased thoracic kyphosis.  Due to his back pain and stiffness, the Veteran was unable to ambulate functional distance.  His standing balance was F+ and dynamic balance was F/F+.  He ambulated with uneven steps, flexed posture using no assistive device.  His standing and tolerance for activities of daily living (ADLs) was fair.  His activity tolerance was F.
In October 2005, the Veteran was afforded a VA examination to determine the nature and etiology of his lumbar spine condition.  The Veteran stated that while moving heavy objects in basic training, he injured his back.  He has had problems ever since and eventually had surgery.  Since surgery, the Veteran’s pain had markedly increased.  The pain radiated into both legs.  Sometimes, he was unable to get out of bed.  The pain was basically constant and was not of a mild nature.  Flare-ups caused the pain to be constant and severe.  He could perform the minimal activities of daily living, and his wife and other members of the family help him with getting dressed, washing, personal hygiene, and things of that nature.  He used a cane as a means of locomotion.
The examiner confirmed the Veteran’s lumbar spine degenerative arthritis diagnosis.  The Veteran had severe pain which the examiner stated was out of proportion with his x-ray findings.  However, physical examination was compatible with the Veteran’s symptomology.  The Veteran had difficulty disrobing and getting dressed.  He had poor heel and toe rising.  The examiner was unable to test the Veteran’s ROM because of the Veteran’s inability to comply.  The Veteran had marked paralumbar spasm.  Repeated motion showed that he was unable to comply; therefore, the examiner was unable to evaluate repeated motion.  Straight leg testing was positive, bilaterally.  There was no reflex or motor defects.  There was decreased sensation at the L4-5 and L5-S1 levels, bilaterally.  The examiner stated that the Veteran was markedly disabled.  The Veteran did not work.
In May 2006, the Veteran was seen for his low back pain.  Aggravating factors included twisting and prolonged standing and sitting.  The Veteran described his symptoms as extremely severe.  He used an assistive device as a means of locomotion.  He took Ultracet and Aleve which provided limited improvement of his symptoms.  He had undergone physical therapy without sustained relief.  
The examiner diagnosed the Veteran with chronic low back pain status post L3 to L5 lumbar decompression and repair of dural leak.  The Veteran continued to suffer from a significant and chronic low back pain radiating down the right posterior thigh associated with paresthesias of the lateral right thigh as well as right lower extremity weakness.  The examiner stated that the Veteran exhibited loss of lumbar lordosis.  There was a healed lumbar incision.  The Veteran exhibited mild tenderness to palpation over the L2 and S1 spinous process.  His ROM was significantly limited.  While forward bending, the Veteran came roughly one to two feet from the floor.  Upon hyperextension, he had significant increasing pain in his low back.  Strength testing on the right lower extremity revealed a 3+/5 strength of the iliopsoas and quadriceps, 3/5 strength of the tibialis anterior, 4-/5 strength of the extensor hallucis longus and 4-/5 strength at the gastrocnemius.  Strength testing of the left lower revealed a 3+/5 strength of the iliopsoas, 3+/5 strength of the quadriceps, 3/5 strength of the tibialis anterior, 3/5 strength of the extensor hallucis longus, and 4-/5 strength at the gastrocnemius.  The Veteran exhibited decreased sensation to light touch over all dermatomes which included L3, L4, L5, S1, to the bilateral lower extremities.  There was no clonus or Babinski to either lower extremity.  The Veteran exhibited a 2+ patellar tendon reflex, bilaterally, and a 1+ Achilles tendon reflex, bilaterally.  Radiographs revealed laminectomy at L3, L4, and L5.  There was no significant listhesis.  The disc space intervals were well-maintained.  The Veteran exhibited mild osteophyte formation of all lumbar levels.  The examiner stated that because of the Veteran’s low back pathology and significant symptoms, he was unable to work and was being placed on disability.  
In July 2012, the Veteran was afforded a VA examination to determine the severity of his lumbar spine disability.  The Veteran stated that he had lower back pain and spasms.  He stated that he could not stand, walk, or sit for too long.  At night, he experienced stiffness.  Motrin and Aleve helped to alleviate the pain.  He had two surgeries and has residuals from the surgeries to include right leg weakness.  In 2003 while getting out of a car, the Veteran developed herniated nucleus pulposus (HNP).  
The examiner diagnosed the Veteran with mild age related DDD and congenital spinal stenosis.  Flare-ups did not impact the function of the thoracolumbar spine.  Forward flexion was to 50 degrees with painful motion beginning at 50 degrees.  Extension was to 30 degrees with no objective evidence of painful motion.  Right and left lateral flexion was to 10 degrees with no objective evidence of painful motion.  Right and left lateral rotation was to 30 degrees with no objective evidence of painful motion.  The Veteran could perform repetitive-use testing with three repetitions.  There was no additional limitation in ROM of the thoracolumbar spine following repetitive-use testing.  The Veteran experienced functional loss and/or functional impairment of the thoracolumbar spine to include less movement than normal, weakened movement, and pain on movement.  The Veteran did not have IVDS, guarding, muscle spasms, or localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine.  His muscle strength was normal with no muscle atrophy.  His reflex exam revealed normal reflexes in the left knee and left ankle but hypoactive right knee and right ankle.  The Veteran’s sensory exams were normal.  Straight leg raising tests were negative.  The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy.  The Veteran did not have any other neurologic abnormalities or findings related to his condition (such as bowel or bladder problems/pathologic reflexes).  He used a cane regularly as a normal mode of locomotion; however, he it was noted that he used the cane for his knee arthritis.  Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran.  The Veteran had scars related to lumbar spine disability.  The scars were not painful and/or unstable nor were the total area of all related scars greater than 39 square cm (6 square inches).  There were no other pertinent physical findings, complications, conditions, signs, or symptoms.  Imaging revealed arthritis.  There were no vertebral fracture or any other significant diagnostic test findings and/or results.  The Veteran’s thoracolumbar spine condition had an impact on his ability to work.
In July 2015, the Veteran was afforded a VA examination to determine the severity of his lumbar spine disability.  The Veteran indicated that standing and walking caused flare-ups twice a week, and he needed to rest in bed for hours.  The examiner confirmed the Veteran’s lumbar spine degenerative arthritis diagnosis.  The Veteran report functional loss or functional impairment which prevented him from lifting or walking for prolonged time.  His ROM was abnormal.  Forward flexion was to 80 degrees and extension, right and left lateral flexion and right and left lateral rotation were all to 20.  The Veteran’s abnormal ROM did not itself contribute to functional loss.  Pain was noted on forward flexion, extension, right and left lateral flexion, and right and left lateral rotation but did not result in/cause functional loss.  There was objective evidence of localized tenderness or pain on palpation in the lower back area.  The Veteran could perform repetitive use testing with at least three repetitions.  Due to pain, he experienced additional loss of function or ROM after three repetitions.  After repetition, forward flexion as to 65 degrees; extension, left lateral flexion and rotation were to 20 degrees; and right lateral flexion and rotation were to 15 degrees.  The Veteran was examined immediately after repetitive use over time nor was he examiner during a flare-up.  The examiner stated that pain, weakness, fatigability, nor incoordination significantly limit functional ability with repeated use over a period of time or with flare-ups.  The Veteran experienced muscle spasms and localized tenderness of the thoracolumbar spine, but they did not result in abnormal gait or abnormal spinal contour.  Guarding was not noted on the exam.  Additional contributing factors of the disability included less movement than normal due to ankylosis, adhesions, etc.  The Veteran had normal muscle strength with no muscle atrophy.  His knee reflexes were normal; however, his ankle reflexes were hypoactive.  The Veteran’s sensory exam revealed normal upper anterior thigh and thigh/knee testing.  He had decreased sensation in his lower leg/ankle and foot/toes.  Straight leg testing was positive on the right and negative on the left.  The Veteran had radicular pain or other signs or symptoms due to radiculopathy.  He did not have ankylosis or IVDS of the spine.  There were no other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes).  The Veteran used a cane on a constant basis.  There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.  There were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to the Veteran’s lumbar spine condition.  Imaging showed arthritis and spine lumbosacral min.  The Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height.  The Veteran’s thoracolumbar spine condition had an impact on his ability to work.  Due to his condition, he was unable to do lifting and bending.  
On August 2, 2017, the Board stated that the previous VA examinations did not test for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59 (2016).  The Board remanded the claim for a new VA examination consistent with Correia.
On August 23, 2017, the Veteran was afforded a VA examination to determine the severity of his lumbar spine disability.  The Veteran stated that in the past 18 months, the pain in his lower back had increased.  He did not have any new injuries, trauma, or surgeries.  He reported intermittent low back pain that radiated down both legs.  The pain was 8/10.  The pain was worse with bending over, rotating, and prolonged walking and sitting.  The pain was worse in the morning.  Occasionally, he had muscle spasms in lower back.  To help relieve the pain, the Veteran took Naproxen, Motrin, and Aleve.  
The examiner confirmed the Veteran’s lumbar spine degenerative arthritis diagnosis.  The examiner also confirmed the Veteran’s radiculopathy, bilateral lower extremity.  The Veteran did not report flare-ups.  He reported functional loss or functional impairment to include feeling weaker because of the lower back pain.  Also, he could not walk as far due to the back.  The Veteran’s ROM was abnormal.  Forward flexion was to 40 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 5 degrees.  The ROM did not contribute to a functional loss.  There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine.  The examiner noted pain on forward flexion, extension, left and right lateral flexion, and left and right lateral rotation.  The pain caused functional loss.  There was evidence of pain with weight bearing.  The Veteran could perform repetitive-use testing with at least three repetitions.  There was additional loss of function or ROM after three repetitions.  Forward flexion was to 30 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 5 degrees.  Passive ROM of the spine was not performed as it was not feasible to do this in a safe and reasonable manner.  Pain, weakness, and incoordination caused function loss.  The Veteran was not examined immediately after repetitive use over time or during a flare-up.  The examiner concluded that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during a flare-up.  The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time.  He further stated that there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions.  The Veteran had muscle spasms that resulted in abnormal gait or abnormal spinal contour.  He also had guarding, but the guarding did not result in abnormal gait or abnormal spinal contour.  There were no additional contributing factors of the disability.  The Veteran’s right and left hip and right and left knee muscle strength was 3/5, i.e., active movement against gravity.  Right and left ankle plantar flexion were 1/5, i.e., palpable or visible muscle contraction, but no joint movement.  Ankle dorsiflexion was 2/5, i.e., active movement with gravity eliminated and right and left great toe extension was 0/5, i.e., no muscle movement.  There was no muscle atrophy.  The Veteran’s reflexes were all normal.  Sensory exam revealed absent sensation to light touch in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes.  Straight leg testing was positive.  He experienced radicular pain.  There were no other signs or symptoms of radiculopathy.  The Veteran did not have ankylosis, IVDS, or any other neurologic abnormalities or findings related to his thoracolumbar spine condition.  He used a cane on a constant basis.  The Veteran’s functioning was no so diminished that amputation with prosthesis would equally serve the Veteran.  Non-weight bearing assessment was not applicable.  There was no objective evidence of pain when the spine was in a non-weight bearing position at rest.  There were no other physical findings, complication, conditions, signs, symptoms, or scars related to his lumbar spine.  Imaging revealed arthritis.  He did not have a thoracic vertebral fracture with loss of 50 percent or more of height or other significant findings or results.  Due to his back pain, the Veteran was disabled and unable to work.  
Based on the evidence of record, the Board finds that prior to August 21, 2017, a rating in excess of 20 percent for a back disability is not warranted.  
Given the medical evidence of record, the Board finds that prior to August 21, 2017, the Veteran’s lumbar spine disability has not been more nearly manifested by forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire lumbar spine, or incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months.  See 38 C.F.R. § 4.71a, DC 5235-5243.  During his October 2005 VA examination, the examiner stated that due to the Veteran’s inability to comply, he was unable to test the Veteran’s ROM.  Additionally, the May 2006 private examiner noted that the Veteran’s ROM was significantly limited.  The Board notes that subsequent ROM tests conducted during the July 2012 and 2015 VA examinations revealed, at worst, flexion to 50 degrees.  Additionally, the examinations conducted revealed no ankylosis in the Veteran’s spine.  Indeed, the extent of thoracolumbar motion shown by the Veteran throughout the course of the appeal would appear to be inconsistent with ankylosis.  Given the foregoing, the criteria for a disability rating higher than 20 percent are not met.
The Board has also considered the effect of pain and weakness in evaluating the Veteran’s disability.  38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. 202 (1995).  The Board notes that the Veteran had some functional loss/impairment which resulted in less movement than normal, weakened movement, and pain on movement.  Although the Veteran experienced additional functional limitation, the loss in range of motion is not commensurate with that for the next higher rating.  Based on the evidence, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and limitation of motion that the Veteran experienced due to his back disability.  See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45, 4.59.
Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, DC 5003 (degenerative arthritis).  However, when there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  A rating of 20 percent requires X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a.  
The Veteran has a current diagnosis of lumbar spine DDD, as confirmed by X-ray imaging.  However, the Veteran’s lumbar spine disability is already rated at 20 percent disabling.  Therefore, no additional higher or alternative ratings under DC 5003 can be applied.
Therefore, the Board finds that prior to August 21, 2017, the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a rating in excess of 20 percent.
From August 21, 2017, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar spine DDD.
As previously noted, a 50 percent disability rating is warranted if there is evidence of unfavorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, DC 5242.  Ankylosis is defined in 38 C.F.R. § 4.71a, Note 5, as follows: “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.”
There is no evidence on record that the Veteran suffers from ankylosis, favorable or unfavorable.  Therefore, under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran is not entitled to a rating in excess of 40 percent.
Under the formula for rating IVDS based on incapacitating episodes, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  The August 2017 VA examiner noted that the Veteran did not have IVDS.  As such, a disability rating of 60 percent is not warranted.  
The Board has also considered whether an increased evaluation could be assigned based on functional loss due to the Veteran’s subjective complaints of pain, weakness, and stiffness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  However, the Veteran already receives the maximum disability rating available for limited motion in the lumbar spine absent ankylosis.  In addition, none of the medical evidence suggests that the severity of his service-connected back disability is the functional equivalent of ankylosis.  Notably, all the VA examinations have demonstrated that the Veteran had at least some ROM in his lumbar spine, even with Deluca considerations, throughout the applicable period under appeal.  As such, he is not entitled to a higher rating under the General Rating Formula for limitation of spine movement.  See 38 C.F.R. § 4.71a, DC 5243.
As to whether additional compensation for neurological impairment is warranted, the General Rating Formula requires consideration of neurological findings, to include bladder or bowel impairment, separate from orthopedic manifestations.  The Board notes that the Veteran is already service-connected radiculopathy of the left and right lower extremities.  With respect to neurological findings of bladder or bowel impairment, the Board notes that the Veteran did not have any neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems).  
The Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s lumbar spine disability.  However, as lay persons, the Veteran and his representative do not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions on this issue, as this is a medical determination that is complex.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)).  Thus, the lay opinions by themselves are outweighed by the VA examiners’ findings.  See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation).
Therefore, the Board finds that from August 21, 2017, the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a rating in excess of 40 percent.
Entitlement to TDIU based on a schedular and extraschedular basis
Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements.  
Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  
“Substantially gainful employment” is employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.”  Moore v. Derwinski, 1 Vet. App. 356, 358 (1991).  “Marginal employment shall not be considered substantially gainful employment.”  38 C.F.R. § 4.16(a).
In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.
Regarding an extraschedular rating, if a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), such as the case here, rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disability.  38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993).  
Thus, despite the Veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age which would have justified TDIU.  38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993).  The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  38 C.F.R. § 4.16(b).
Analysis
In January 2004, the Veteran filed a claim for service connection for lumbar spine disability.  In May 2004, the RO granted service connection and assigned a 20 percent rating effective January 8, 2008.  In June 2004, the Veteran appealed the evaluation stating that his disability warranted a 60 percent rating.  He also stated that due to his service-connected disability, he was unable to secure or follow substantially gainful employment.  The RO denied the claims, and the Veteran appealed.  In a September 2005 Statement of the Case (SOC), the RO confirmed the denial.  The Veteran did not file a Substantive Appeal.  In December 2007, the RO proposed to reduce the Veteran’s lumbar spine disability rating from 20 percent to zero.  In a January 2006 Statement in Support of Claim, the Veteran appealed the RO’s decision to reduce his lumbar spine disability rating and noted that due to his service-connected disability, he was unable to secure or follow substantially gainful employment.  In February 2006, the RO severed service connection.  The Veteran appealed.  In a December 2012 Board decision, the Board restored service connection effective January 2004 and remanded to determine if an evaluation in excess of 20 percent was warranted.  
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part and parcel of an increased rating claim when such claim is raised by the record.  In this case, the Board notes that in his June 2004, NOD, the Veteran stated that due to his service-connected disability, he was unable to secure or follow substantially gainful employment.  Therefore, the issue is raised by the record and is properly before the Board.
Prior to July 4, 2015, the Veteran was service connected for lumbar spine DDD rated at 10 percent, effective July 2, 2001.  From July 5, 2015 to August 20, 2017, the Veteran was service connected for lumbar spine DDD rated at 20 percent, effective January 8, 2004 and radiculopathy, right lower extremity associated with DDD, lumbar spine rated at 10 percent, effective July 5, 2015.   Prior to July 4, 2015, the Veteran’s overall rating was 20 percent.  From July 5, 2015 to August 20, 2017, the Veteran’s overall rating was 30 percent.  The Veteran did not meet the threshold requirement for TDIU.  38 C.F.R. § 4.16(a).  Therefore, TDIU is not warranted on a schedular basis.
As the Veteran does not meet the schedular requirements for TDIU, the only remaining questions is whether the Veteran is unable to secure or follow substantially gainful occupation as a result of his service-connected disabilities for purposes of an extraschedular TDIU evaluation under 38 C.F.R. § 4.16(b).  The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance.  Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating).  It may, however, determine that a particular case warrants referral to the Director of Compensation for extraschedular consideration under 38 C.F.R. § 4.16(b). 
For a Veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with an equal rating of disability.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  Id.  This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  Id.
The Veteran completed two years of college.  From 1987 to 2002, he worked as a Fleet Service Clerk.  Before and after becoming too disabled to work, the Veteran did not have any other education or training.  
A Social Security Administration (SSA) Judge concluded that the Veteran had been disabled since February 2002.  The Judge noted the Veteran’s primary diagnosis was status post percutaneous transluminal coronary angiography (PTCA) angina, and the secondary diagnosis was coronary artery disease (CAD).
From 2004 to 2007, the Veteran was seen at the Broward County VA, OPC.  The Veteran complained of low back pain.  He had completed therapy, but the pain persisted.  He used a cane as a mode of locomotion.     
In May 2004, October 2005, and July 2012 and 2015, the Veteran was afforded VA examinations.  The May 2004 examiner noted that the Veteran had persistent back pain.  The Veteran’s forward flexion was to 60 degrees.  After repeated motion, forward flexion was to 50 degrees.  The Veteran could perform the activities of daily living.  He did not use any medical aids.  In October 2005, the Veteran complained of constant pain.  Flare-ups caused the pain to be constant and severe.  He could perform the minimal activities of daily living, and his wife and other members of the family help him with getting dressed, washing, personal hygiene, and things of that nature.  He used a cane as a means of locomotion.  The examiner was unable to perform ROM testing.  In July 2012, the Veteran stated that he could not stand, walk, or sit for too long.  Forward flexion was to 50 degrees with painful motion beginning at 50 degrees.  The Veteran could perform repetitive-use testing with three repetitions.  There was no additional limitation in ROM of the thoracolumbar spine following repetitive-use testing.  The Veteran experienced functional loss and/or functional impairment of the thoracolumbar spine to include less movement than normal, weakened movement, and pain on movement.  The Veteran’s thoracolumbar spine condition had an impact on his ability to work.  
In March 2015, the RO attempted to obtain an addendum opinion from the July 2012 VA examiner to determine the effect of the Veteran’s service-connected disabilities on his or her ability to function in an occupational environment.  The examiner stated that the RO granted service connection for the Veteran’s back even though all the evidence weighed against service connection.  The examiner stated that he could not give a fair opinion on employment because his original opinion was against service connection.
During his July 2015 exam, the Veteran indicated that standing and walking caused flare-ups twice a week, and he needed to rest in bed for hours.  The Veteran report functional loss or functional impairment which prevented him from lifting or walking for prolonged time.  Forward flexion was to 80 degrees, after repetitive use testing, forward flexion was to 65 degrees.  The examiner noted that the Veteran’s abnormal ROM did not itself contribute to functional loss.  The examiner noted radicular pain on the Veteran’s right lower extremity.  The Veteran had mild constant and intermittent (usually dull) pain.  He also had mild numbness and paresthesias and/or dysesthesias.  The Veteran’s thoracolumbar spine condition had an impact on his ability to work.  The examiner stated that the Veteran was less likely as not to be able to maintain a gainful physical or sedentary employment.  He was not fit for any physical employment due his limited ability to stand and repeatedly bend, and his inability to lift.  He was unable to perform repetitive motion.  In addition, he was not fit for sedentary work due to difficulty sitting for prolonged time, and it was likely he would be absent from work due his pain.  The Veteran was on pain medication and had frequent flare-ups.  
Upon review of all the evidence of record, both lay and medical, the Board finds that prior to August 21, 2017, the Veteran’s disabilities did not preclude him from all forms of substantially gainful employment; therefore, referral for an extraschedular consideration is not warranted.  The Board has acknowledged and considered the Veteran’s lay and buddy statements addressing his employability.  The Board notes that the Veteran is competent and credible to report the subjective symptoms and functional limitations he experiences regarding his service-connected disabilities.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Nonetheless, the Board emphasizes that the Veteran’s description of his service-connected disabilities must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria.
The July 2012 and 2015 VA examiners concluded that the Veteran’s back condition had an impact on the Veteran’s ability to work.  The July 2012 examiner noted that the Veteran’s disability caused functional loss and/or functional impairment of the thoracolumbar spine to include less movement than normal, weakened movement, and pain on movement.  The July 2015 examiner stated that due to the Veteran’s back condition, the Veteran was unable to maintain a gainful physical or sedentary employment.  The October 2005 examiner stated that the Veteran’s wife and other family members helped the Veteran with dressing, washing, and personal hygiene.  However, the Board notes that the Veteran was still able to perform activities of daily living.  The May and July examiners were able to test the Veteran’s ROM, and the July examiners performed repetitive use testing.  At worst, the Veteran’s ROM was 50 degrees.  The Veteran did not experience ankylosis.  The Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the combined 20 and 30 percent ratings.  Loss of industrial capacity is the principal factor in assigning schedular disability ratings.  See 38 C.F.R. §§ 3.321 (a), 4.1.  Indeed, 38 C.F.R. § 4.1 specifically states: “Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.”  See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). 
While the Board does not doubt that the Veteran’s disabilities have had a significant effect on his employability, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in all forms of substantially gainful employment based on his occupational background and level of education.  
The Board notes that the VA is required to consider the SSA’s findings.  However, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA.  See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991).  Adjudication of VA and SSA claims is based on different laws and regulations.  In this case, SSA considered the Veteran’s non-service connected angina and CAD as primary and secondary disabilities for awarding the Veteran unemployability.  However, the law is clear, and it states that only service-connected disabilities may be considered in a claim of entitlement to TDIU.
As such, the Board finds that referral to the VA Director of Compensation Service for extraschedular consideration is not warranted.  38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993).  The benefit of the doubt doctrine is inapplicable, and the claim must be denied.  See 38 C.F.R. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 
MICHAEL LANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Henry, Associate Counsel 

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