Citation Nr: 0611206 Decision Date: 04/19/06 Archive Date: 04/26/06 DOCKET NO. 01-09 117 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial extra-schedularrating in excess of 40 percent for lumbar disc disease, on an extra-schedular basis.. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESSES AT HEARING ON APPEAL Appellant and a physician ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The appellant had active service from May to November 2000. This appeal to the Board of Veterans Appeals (Board) originally arose from a May 2001 rating action that granted service connection and assigned an initial schedular 20 percent rating for a lumbar disc bulge with degenerative joint disease, effective November 21, 2000. The veteran filed a Notice of Disagreement (NOD) with the assigned rating in July 2001, and the RO issued a Statement of the Case (SOC) in September 2001. The veteran filed a Substantive Appeal in October 2001, and the RO issued a Supplemental SOC (SSOC) in November 2001. By rating action of May 2002, the RO granted an initial schedular 40 percent rating, effective November 21, 2000, for lumbar disc disease with radicular symptoms; the matter of an initial rating in excess of 40 percent remained for appellate consideration. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). The RO issued a SSOC later in May 2002. In November 2002, the undersigned Veterans Law Judge (VLJ) granted the appellant's motion to advance this case on the Board's docket, pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900 (2003). In February and March 2003, the Board requested additional development of the claim on appeal pursuant to the provisions of 38 C.F.R. § 19.9 (2002). In June 2003, the Board remanded these matters to the RO for completion of the actions requested. At that time, it was noted that the provisions of 38 C.F.R. § 19.9 essentially conferring upon the Board jurisdiction to adjudicate claims on the basis of evidence developed by the Board, but not reviewed by the RO, had been held to be invalid. Disabled American Veterans (DAV) v. Secretary of Veterans Affairs (Secretary), 327 F.3d 1339 (Fed. Cir. 2003). After completing the requested action, the RO issued a SSOC in July 2003, reflecting the continued denial of the claim. By decision of October 2003, the Board denied an initial rating in excess of 40 percent for lumbar disc disease. The appellant appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). On the basis of a February 2004 Joint Motion filed by counsel for the VA Secretary and the appellant, the Court, by Order of February 2004, vacated the Board's October 2003 decision and remanded the matter on appeal to the Board for further proceedings consistent with the Joint Motion. This appeal also arises from a December 2003 rating action that denied a TDIU. The veteran filed a NOD in January 2004, and the RO issued a SOC in November 2004. The veteran filed a Substantive Appeal in December 2004. In July 2004, the Board remanded the increased rating claim to the RO for due process development. After completing the requested action, the RO issued a SSOC in August 2004, reflecting the continued denial of the claim. By decision of October 2004, the Board denied an initial schedular rating in excess of 40 percent for lumbar disc disease, and remanded to the RO the matter of a higher initial, extra-schedularrating in excess of 40 percent for that disability-along with the claim for a TDIU-for due process development, to include initial adjudication by the RO. After completing the requested action, the denied the claim (as reflected in a January 2005 SSOC), and returned both claims to the Board , and returned these matters to the Board for further appellant consideration. extra-schedular In January 2006, the veteran and a physician, C. Bash, M.D., testified at a Board hearing before the undersigned VLJ in Washington, D.C.; a transcript of the hearing is of record. As a final preliminary matter, the Board notes that, during this appeal, the veteran was initially represented by a Veterans Service Organization; however, she is now represented by a private attorney, as reflected on the title page of this decision. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. Since the November 21, 2000 effective date of the grant of service connection, the veteran's lumbar disc disease with radicular symptoms case has not presented such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 3. The weight of the competent medical evidence establishes that the veteran's sole service-connected disability, lumbar disc disease evaluated as 40 percent disabling, does not prevent her from obtaining or retaining substantially-gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial extra-schedularrating in excess of 40 percent for lumbar disc disease with radicular symptoms, on an extra-schedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1) (2005). . 2. The criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340 and Part 4, including §§ 4.1, 4.2, 4.10, 4.15, 4.16, 4.19 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate each claim on appeal has been accomplished. Through the January 2001 letter, the May 2001 rating action, the September 2001 letter and SOC, the November 2001 and May 2002 SSOCs, the May 2002 rating action and letter, the June 2003 letter, the July 2003 SSOC, the September and November 2003 letters, the December 2003 rating action, the July 2004 letters, the August and November 2004 and January 2005 SSOCs, and the March 2005 letter, the RO variously notified the veteran of the law and regulations governing entitlement to the benefits sought on appeal, the evidence that would substantiate her claims, and the evidence that had been considered in connection with her appeal. After each, she was afforded an opportunity to respond. Thus, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support her claims, and has been provided ample opportunity to submit such information and evidence. Additionally, the September 2001, June and November 2003, and July 2004 RO letters, SOCs, and SSOCs variously informed the veteran of what the evidence had to show to establish entitlement to the benefits she sought; what information or evidence VA still needed from her; what evidence VA had retrieved and considered in her claims; what evidence she had to furnish; what she had to do to obtain assistance from VA in connection with her appeal; and that VA would make reasonable efforts to help her get evidence necessary to support her claims, such as medical records (including private medical records), if she gave it enough information about such records so that it could request them from the person or agency that had them. Specifically, the latter 2001, 2003, and 2004 RO letters informed the appellant of the VCAA's requirements, and notified her that she could help with her claims by informing VA of any additional information or evidence that she wanted it to try to obtain for him, where to send additional evidence or information concerning her appeal, and where she could request assistance if needed. The latter July 2004 RO letter specifically requested the veteran to furnish any evidence that she had in her possession that pertained to her claims. Accordingly, the Board finds that the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by her and what evidence will be retrieved by VA has been met. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board points out that, in the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that proper VCAA notice should notify a veteran of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in his possession that pertains to the claim. As indicated above, all four content of notice requirements have been met with respect to the claims on appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided at the time that, or immediately after, the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the matters now before the Board, documents meeting some of the VCAA's notice requirements were furnished to the veteran both prior and subsequent to the initial May 2001 rating action on appeal. However, the Board finds that any lack of full, pre-adjudication notice does not prejudice the veteran in any way, because the delay in issuing 38 U.S.C.A. § 5103(a) notice did not affect the essential fairness of the adjudication, in that her claims were fully developed and readjudicated after notice was provided. As indicated above, the rating actions, RO letters, SOCs, and SSOCs issued between 2001 and 2005 have repeatedly explained to the veteran what was needed to substantiate her claims. As a result of RO development and the Board remand, comprehensive documentation, identified below, has been associated with the claims file and considered in evaluating the veteran's appeal. The RO most recently readjudicated the veteran's claims on the merits in November 2004 and January 2005 on the basis of all the evidence of record, as reflected in the SOC and SSOC, respectively. Hence, the Board finds that any failure on the part of VA in not fulfilling any VCAA notice requirements prior to the RO's initial adjudication of the claims is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2004). More recently, in March 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 & 02-1506 (U.S. Vet. App. March 3, 2006), which held that, in rating cases, a claimant must be informed of the rating formula for all possible schedular ratings for an applicable rating code. However, that requirement is not applicable where, as here, the Board has already considered the claim on a schedular basis, and is now considering only a higher rating on an extra-schedular basis. The Court also held that VA notice must include information regarding the effective date that may be assigned. In this case, the veteran was provided sufficient criteria in the January 2005 SSOC. In any event, the Board points out that, in view of the denial of each claim, no effective date is being assigned, and neither the veteran nor her representative has even suggested that any effective date is being challenged. Additionally, the Board finds that all necessary development on the claims currently under consideration has been accomplished. The RO, on its own initiative as well as pursuant to the Board's and Court's remands, has made reasonable and appropriate efforts to assist the appellant in obtaining all evidence necessary to substantiate her claims, to include obtaining extensive VA outpatient and vocational rehabilitation records and state vocational rehabilitation records, and arranging for her to undergo several comprehensive VA medical examinations (the most recent of which were conducted in April and November 2003). The veteran and a physician testified at a Board hearing in January 2006, a transcript of which is of record. In March 2006, the veteran's attorney submitted additional private medical evidence directly to the Board, with a waiver of her right to have that evidence initially considered by the RO. Significantly, the veteran has not identified, and the record does not otherwise indicate, that any existing evidence in addition to that noted above, pertinent to the claims on appeal, has not been obtained. In July and December 2003 and August 2004, the veteran variously notified the RO that she had no additional information or evidence to submit in connection with her claims. Under these circumstances, the Board finds that the veteran is not prejudiced by appellate consideration of the claims remaining on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Background The service medical records show that the veteran was medically discharged from service in November 2000 due to low back pain of moderate severity. On December 2000 examination by R. Salzer, M.D., the veteran complained of back pain. On examination, lumbar lordosis was normal. There was diffuse soreness in the left paraspinous area, and good range of motion of the hips and knees. There was no sensory disturbance. Straight leg raising reproduced some hip and thigh pain. The physician opined that the veteran had disc herniation, assumed to be a bulge at L4-5 on the left side; another possibility was that a large fibroid uterus could be causing some lumbosacral plexus problems. Also in December 2000, the veteran filed a claim for service connection for low back pain that radiated down the left leg. On February 2001 VA examination, the veteran reported constant pain in the left low back, and said that walking 100 yards made the pain worse. She stated that she could sit, stand or stoop for 15 minutes without getting severe back pain, and that lifting anything over 25 pounds caused severe back pain. On examination, she was clearly in distress and leaned heavily to her right side. Left lateral bending was from 0 to 35 degrees, right lateral bending from 0 to 45 degrees, extension from 0 to 35 degrees, and flexion from 0 to 85 degrees. Deep tendon reflexes were normal at the knees and ankles. Straight leg raising was positive on the left at 60 degrees. Sensation was normal in the lower extremities, with normal distal pulses. Lumbosacral spine X-rays revealed minimal disc space narrowing at L4-5. The impressions were minimal bulge at L4-5, degenerative disc disease, and lumbar disc with no nerve root involvement. April 2001 VA lumbar magnetic resonance imaging (MRI) revealed minimal disc bulging at L4-5 without compressive sequela, and was noted to be unremarkable. On April 2002 VA examination, the veteran complained of severe pain in the left back and leg. She stated that, following military service, it took her a year to find a job, and that after 2 months, she could only work part-time as a mentor and tutor because she was unable sit, stand, and walk for prolonged periods. She reported pain primarily in the left mid- and low back that radiated down the left thigh and leg (posterior thigh and calf), with some numbness and tingling, but no weakness in the leg. She also reported that she was not able to lie on her left side, and that she experienced flare-ups two to three times a day, described as sharp burning pain down the back and leg. She indicated that, when this occurred, she had to get out of bed and walk around. She also noted that, when performing an activity, she had to stop what she was doing and lean against a wall until the sharp burning pain subsided. On examination, the veteran sat sideways in the examination room, she had difficulty getting on and off the examination table. Gait was asymmetric, with almost a swivel component to the hips. Examination of the lumbar and cervical spine revealed normal curvatures. There was tenderness over the lower thoracic and lumbosacral spine, without palpable spasms. Left lateral bending was from 0 to 35 degrees, with pain at the extreme of motion, with no diminution of the range or strength with repetitive testing. Right lateral bending was from 0 to 45 degrees, with pain at the extreme of motion with no diminution with repetitive testing. Extension was from 0 to 30 degrees, with pain at the extreme of motion; this diminished to 0 to 20 degrees with repetitive testing. Forward flexion was from 0 to 105 degrees, with pain at the extreme range, and this diminished to 0 to 85 degrees with repetitive testing. Leg lengths were equal, and there was no atrophy in the calves or thighs. Straight leg raising was positive bilaterally on the right at 60 degrees, and on the left at 40 degrees. Left knee motor strength was 5/5 on initial testing on flexion and extension, which diminished to 4+/5 on repetitive testing. Left knee extension was to 0 degrees, but on repetitive testing she was only able to elevate her leg to a loss of 15 degrees. Deep tendon reflexes were 2+ bilaterally at the ankles and knees, and the toes were downgoing bilaterally. There was 5-/5 motor strength throughout all planes in the left lower extremity that did not diminish with repetitive testing. There was decreased sensation in the lateral and posterior left calf and lateral dorsal and plantar surface of the left foot. Distal pulses were 2+, with no pedal edema. Current X-rays of the lumbar spine were unremarkable. After review of the April 2001 VA MRI report and March 2001 VA X- rays, the impression was minimal lumbar degenerative disc disease with radicular symptoms, and the examiner felt that the veteran's pain and radicular complaints originated from her lumbar spine. An April 2002 VA outpatient record indicated that the veteran underwent a pain assessment during which she described her pain as 4 on a scale of 0 to 10. She stated that pain was present in the lower back and left leg with radiation, and was constant with movement of the affected part. On June 2002 VA examination, there was mildly decreased sensation in the veteran's left leg, and the examiner noted that the veteran had mechanical low back strain. An October 2002 VA Contact Report indicates that the veteran was contacted by a VA vocational rehabilitation counselor and advised that her vocational rehabilitation program had been interrupted because she had not been able to take the next steps as scheduled. She stated that she continued to have medical problems, was seeing an oncologist, was scheduled for surgery due to a gynecological condition, and would call after the surgery to update the counselor on her health and discuss alternatives at that time. A letter of October 2002 advised the veteran that her vocational rehabilitation program had been discontinued effective that month because of her inability to begin a training program due to medical issues. A November 2002 VA pain assessment record notes the veteran's report that her pain was 5 on a scale of 0 to 10, was located in the abdomen and left leg, and radiated down to the left foot. She reported chronic leg pain for 2 years. A March 2003 VA outpatient record includes a notation that the veteran's main problem was periodic back pain that she had had since military service. She walked with a limp in the morning, and sat with the left leg extended. There was very limited flexion of the lumbar spine, and positive straight leg extension in the left leg, in which she had most of her pain. There was some weakness on extension of the left great toe, and no other changes. On April 2003 VA orthopedic examination, the veteran complained of low back pain which waxed and waned in severity, and was most pronounced over the left lower lumbar paravertebral region. She also experienced radiation of pain into the left gluteal region and left leg, with a prominent burning and tingling component. Additionally, the leg felt weak. The pain was most consistently exacerbated with prolonged sitting. She denied similar right leg symptoms, and had not experienced bowel or bladder symptoms. She reported that the pain was sometimes so severe that she went to bed and was unable to perform activities. She stated that she had not been able to work. On examination, there was tenderness to percussion over the lumbar spine. Straight leg raising was mildly positive in the left lower extremity. Motor examination revealed normal right lower extremity function. The veteran reported increased pain with any effort of the leg, and thus exerted submaximal effort. There was no appreciable muscle wasting. There was a left antalgic gait. Sensory examination was normal to pinprick, vibration, and temperature in both lower extremities. Muscle stretch reflexes were 2+ and symmetric in lower extremities, including ankle jerks. X-rays of the lumbar spine revealed partial sacralization of L-5 with apparent disc space narrowing at L5-S1; there was no evidence of disc disease and no evidence of current or remote injury. The diagnosis was chronic low back pain and left lower extremity pain consistent with sciatica. There were no objective abnormalities by neurological examination indicative of radiculopathy. MRI of the lumbar spine was normal, and disc bulging as described was considered a normal finding. Pain was noted to be the veteran's primary problem and limiting factor, which pain was pronounced, with little intermittent relief. The examiner indicated that, by history, incapacitating episodes occurred for more than 6 weeks over the past 12 months. On April 2003 VA neurological examination, the veteran complained of pain primarily in the left lower quadrant which frequently rolled down to the left hip and posterior left thigh, with tingling in the thigh during times of pain at that site. She reported radicular symptoms that occurred with lengthy standing, sitting, or walking, and a change of position or activity helped resolve the symptoms. The veteran stated that she could walk for 10-15 minutes before the pain got bad enough that she had to sit and rest. She reported having tried various miscellaneous medications without any significant benefit. The pain reportedly interfered with her sleep, and was constant; it did not come and go, and did not flare-up except when it worsened with some activities, like running, heavy lifting, or prolonged bending. She reported that she could lift 20 pounds, and did her own housework. She avoided more strenuous activities such as sports. The examiner noted that, despite the reported severity of pain, the veteran had not sought medical care except for one visit to an orthopedist in late 2000. He also noted that a 2001 MRI report showed slight bulging at L4-5, and that plain lumbar X-rays in April 2002 were unremarkable. On examination, the veteran displayed a normal gait walking from the waiting room to the examination room, but then displayed difficulty getting in and out of the chair with significant difficulty squatting. Range of motion was limited to 45 degrees on flexion, 0 degrees on extension, and 20 degrees on lateral bending in each direction. Both truncal rotation and axial loading produced complaints of significant low back pain, which were nonphysiologic findings. Any low back motion was accompanied by loud verbal complaints of pain. Deep tendon reflexes were normal and equal at the knees and ankles. The diagnosis was minimal degenerative disc disease with symptoms of radiculopathy. It was the examiner's impression that the veteran's hip and thigh symptoms were totally due to her low back problem. He also noted objective clinical signs of nonphysiologic responses which lead to some degree of symptom exaggeration. He opined that the symptoms as described and the minimal degree of pathology demonstrated on MRI did not lead to a conclusion of significant disability or incapacitation. Rather, the doctor opined that the veteran's pain had been incompletely medically treated, and poorly tolerated by her, to the extent that she was unwilling to seek any further medical treatment for it. He stated that the employment that she had subsequent to military service was definitely non-strenuous work, which should have been very tolerable for someone with her degree of pathology. He further opined that the fact that the veteran quit her job due to her pain was less a demonstration of incapacitation, and much more a demonstration of her pain hypersensitivity. He noted that the range of motion described above was treated repeatedly without any significant evidence of fatigability or weakness, and without any evidence objectively observable of pain on motion; the only indication of pain on motion was the veteran's loud verbal complaints. The physician provided "normal" range of motion standards of 75 degrees on flexion, 30 degrees on [backward] extension, and 35 degrees on lateral bending in each direction. Lastly, the examiner stated that he believed that all of the veteran's hip and thigh symptoms were attributable to lumbar radiculopathy. May 2003 VA MRI revealed a mild left paracentral L3-4 disc bulge that was thought to possibly represent an early disc herniation. Although the disc bulge resulted in mild left neural foraminal stenosis, there was no evidence of nerve impingement. A May 2003 VA pain assessment form includes a notation as to chronic pain in the veteran's lower back that radiated down her left leg. She described the pain as 4 on a scale of 0 to 10, and noted that it was sharp, aching, throbbing, and continuous. On another evaluation that same month, the veteran walked with a slight limp and had positive left straight leg raising. The diagnosis was lumbosacral pain. August 2003 records from the South Carolina Vocational Rehabilitation Department include a psychological report and records related to a chronic pain management program that the veteran participated in that month. The psychological report contained no diagnostic impression, and with respect to functional limitations, noted that the veteran might be unable to perform specific job tasks due to physical limitations and an uncertainty regarding future employability. A physical therapy record noted that all flexion exercises increased the veteran's pain complaints, and that she was limited to walking less than .125-mile per day. She was also noted to have a limp with walking when pain was aggravated. In regard to vocational limitations, the therapist noted that the veteran physically tolerated a full day of activity for the 4-week evaluation period at the sedentary-to-light work level, but had significant time limitations in all positions. He added that the veteran would need accommodations for no crouching, stooping, climbing, or crawling activities, and changed positions frequently between sitting, standing, and walking. On November 2003 VA examination, the veteran complained of worsening back pain that was constant and radiated from the left low back down the posterior left leg to the toes, with weakness, but no numbness, in the leg. She stated that she could not sit for more than 20 minutes, stand or walk for more than 15 minutes, or bend, kneel, squat, or lie on her back or left side. She currently did not work, last having been employed in September 2003 as a tutor, mentor, and school aide for field trips. She stated that she currently could not perform that kind of work because of inability to walk or sit. She reported no medically-directed periods of incapacitation. On current examination, the veteran sat in very awkward positions, frequently changing positions from sitting with her back partially extended and her left leg straight out, to sitting hunched-forward to her chair. She arose by pushing herself out of her chair using her arms. On examination of the lumbosacral spine, she had knee-buckling pain to extremely-light palpation of the left low back diffusely, with no specific trigger point. There were normal curvatures and no palpable spasms. Lateral bending was from 0 to 15 degrees on the left and 0 to 25 degrees on the right, extension was from 0 to 15 degrees, and flexion from 0 to 50 degrees, with pain in all 4 ranges of motion. However, when asked to look at something behind her, the veteran turned quickly around at the waist. There was positive truncal rotation pain and negative axial compression pain. She was able to kneel on a chair only to 40 degrees, despite earlier sitting on a chair upright bent forward to 30 degrees. Straight leg raising was positive while supine at 30 degrees, and negative bilaterally when sitting. There was normal sensation and 5/5 motor strength in the lower extremities and 2+ deep tendon reflexes of the knees and ankles, without evidence of muscle atrophy or fasciculations. The examiner reviewed April 2002 lumbosacral spine X-rays that were unremarkable overall, and April 2001 MRI showing a slight disc bulge at L4-5, which he noted was not considered a significant finding. The examiner's impression was that the veteran had low back strain with nonsignificant imaging findings, with very significant evidence of symptom magnification, as confirmed by current examination as well as April 2003 VA examination. The doctor opined that the veteran should be able to find and maintain gainful employment. June 2004 VA lumbar MRI revealed normal configuration and alignment of the vertebrae. The vertebral discs had preserved height and signal, and there was mild disc bulging at L4-5, without identifiable nerve root compression. VA outpatient records show that injection of medication in July 2004 provided the veteran temporary relief of back pain. She reported discomfort and difficulty in walking and sitting. When seen again in August, her gait was nearly normal. She was restless sitting in a chair, leaning to keep her weight off of her left buttock and hip. She reported a 25 percent reduction in pain, and she slept well. Her gait was again nearly normal in October, and she exhibited somewhat exaggerated pain behavior. A TENS unit was noted to have been very effective. At a January 2006 Board hearing, the veteran testified that she had been unemployed for 4 years due to her service- connected back disability, that medication had provided some relief, that she used a cane but not a wheelchair, and that she lived by herself and could take care of herself and shop for herself, although she could not carry heavy items. Dr. Bash testified that he had reviewed the veteran's medical records with respect to her low back disability and examined her briefly, and opined that she was unemployable because of her service-connected back disability. In a January 2006 written statement, Dr. Bash stated that he reviewed the veteran's claims file and all medical records contained therein, and also examined her, and opined that her service-connected low back disability met the VA criteria for a 60 percent disability rating, and that she was unemployable, unable to obtain or maintain employment due to her service-connected back disability. In a March 2006 statement, C. Gross, a vocational rehabilitation counselor, opined that the veteran's physical disabilities would prevent her from performing a sustained work day, either part-time or full-time, and that she would be a poor candidate for vocational re-training due to her service-connected disability and the resulting physical limitations. In addition, Miss Gross opined that the veteran would be impossible to place, in that her physical disabilities would prevent her from being competitive or desirable in the workplace. On those bases, she opined that the veteran did not appear to be employable within the current competitive job market at a substantial, gainful level due to the handicapping effects of her service- connected disability. Her diagnosed impairment and resulting functional limitations (handicaps), combined with feasibility (suitability - availability and appropriateness of employment in the competitive labor market, aptitudes, and educational levels), had resulted in a disability which affected her ability to obtain and maintain suitable gainful employment. III. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making a disability determination. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Historically, the veteran's service-connected low back disability has been rated under the provisions of 38 C.F.R. § 4.71a, DC 5293. DC 5293 pertains to intervertebral disc syndrome (IVDS). The rating criteria of DC 5293 were changed, effective September 23, 2002 (see 67 Fed. Reg. 54345-54349 (August 22, 2002)), and the Board considered the claim for a higher initial rating under all pertinent schedular criteria. The matter remaining before the Board in connection with the claim for a higher initial rating is whether such a rating is warranted on an extra-schedular basisneurologivalneurologivalneurologivalneurologivalneurolog ivalneurologival In exceptional cases where the schedular evaluations are found to be inadequate, and extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved, provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Further, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). However, even when the percentage requirements are not met, a TDIU on an extra-schedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The central inquiry is whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet App. at 363. In this case, veteran's sole service-connected disability is rated as 40 percent disabling, pursuant to VA's rating schedule, she clearly does not meet the minimum percentage requirements set forth in 38 C.F.R. § 4.16(a). Hence, like the question of a higher initial rating, the Board is left to consider only the veteran's entitlement to a TDIU on an extra-schedular basis. In this case, the veteran's service-connected low back disability has primarily been manifested by complaints of pain, including radiating pain down the left leg, and reduced range of motion; there also is evidence of activity restrictions. She has indicated that her low back bothers her on a daily basis, with increased complaints after prolonged walking, sitting, or standing. Considering these symptoms, and other pertinent evidence in light of the above- noted legal authority, the Board finds that there is no showing, at any point since the November 21, 2000 effective date of the grant of service connection, that the veteran's service-connected lumbar spine disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis, or that she is incapable of performing the physical and mental acts required by employment as to warrant a TDIU. Specific to the claim for a higher initial rating on an extra-schedular basis, the Board notes that, while the veteran is unemployed, the weight of the competent medical evidence demonstrates that her low back disability does not result in marked interference with employment (beyond that contemplated by the 40 percent schedular rating assigned). The April 2003 VA neurological examiner diagnosed only minimal degenerative disc disease with symptoms of radiculopathy, and stated that the veteran's symptoms and the minimal degree of pathology demonstrated on MRI did not lead to a conclusion of significant disability or incapacitation. He also stated that the student tutor job that the veteran had subsequent to service was definitely a non-strenuous kind of job that should have been very tolerable for someone with her minimal degree of pathology. Significantly, the physician commented that the fact that she quit this job was less a demonstration of incapacitation, and much more a demonstration of her "pain sensitivity." Moreover, the November 2003 VA examiner concluded that the veteran's low back disability was manifested by nonsignificant imaging findings and very significant evidence of symptoms of magnification, and opined that she should be able to find and maintain gainful employment. Although, in January 2006 Dr. Bash opined that the veteran's low back disability met the VA criteria for a 60 percent disability rating, that matter is not at issue here, inasmuch as the Board has already adjudicated the matter of whether an initial schedular rating in excess of 40 percent should be assigned. There also is no evidence that the veteran's low back disability has required frequent periods of treatment, much less hospitalization, or that the disability has otherwise rendered impractical the application of the regular schedular standards. As noted previously, the April 2003 VA neurological examiner reported that the veteran had not sought medical care for her back except on 1 occasion in late 2000, and the November 2003 VA examiner noted that she reported no medically-directed periods of incapacitation. 2004 VA outpatient records show that injection of medication provided the veteran some relief of back pain and that a TENS unit had been very effective, that her gait was nearly normal, that she slept well, and that she continued to exhibit somewhat exaggerated pain behavior. While the veteran experiences pain in her low back that worsens on prolonged walking, standing, or sitting, the Board in October 2004 found that these factors were already contemplated in the currently-assigned initial schedular 40 percent rating, and thus provide no basis, alone, for assignment of any higher initial extra-schedular rating. In the absence of evidence of such factors as those outlined above, the Board finds that the procedures for assigning an extra-schedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) are not be invoked. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Similarly, specific to the claim for a TDIU, although, as noted above, the evidence indicates that veteran has not been employed since 2002, the weight of the competent medical establishes that she is not unable to carry out job-related tasks or unable to obtain and retain substantially gainful employment, solely as a result of his single service- connected psychiatric disability. Although in January 2006 Dr. Bash and Miss Gross opined that the veteran was unemployable, those statements do not, in and of themselves, entitle her to a TDIU. When those opinions are considered in light of the actual symptoms that the veteran has manifested and other evidence indicating that she would be physically able to carry out some job-related tasks, the Board finds that unemployability solely as a result of service-connected lumbar disc disease is not established. The Board accords great probative value to the 2003 VA medical opinions that the veteran was not significantly disabled or incapacitated, and that she was able to find and maintain gainful employment, and finds that they carry great weight in disposing of the question of entitlement to a TDIU. These VA physicians reached their conclusions only after a thorough review of the veteran's medical records, and current comprehensive examinations of the veteran which exposed less a demonstration of incapacitation, and much more a demonstration of her "pain sensitivity," as well as objective clinical signs of nonphysiologic responses which lead to some degree of symptom exaggeration, and very significant evidence of symptoms of magnification - factors unaddressed by either Dr. Bash or Miss Gross. Rather, the testimony at the hearing establishes that Dr. Bash only briefly examined the veteran prior to the hearing, and Miss Gross stated in March 2006 that she had been unable to conduct an in-person vocational assessment of the veteran. The Board also accords great probative value to the August 2003 South Carolina Vocational Rehabilitation Department therapist's evaluation of the veteran's vocational limitations, to the effect that she physically tolerated a full day of activity for each day of a 4-week evaluation period at the sedentary-to-light work level, albeit with significant time limitations. Moreover, Miss Gross also based her assessment of the veteran's employability on that fact that she would be impossible to place in a job, in that her physical disabilities would prevent her from being competitive or desirable in the workplace. The Board finds that, while impairment and resulting functional limitations (handicaps) may be considered in determining entitlement to a TDIU, other factors such as feasibility (suitability - availability and appropriateness of employment in the competitive labor market, aptitudes, and educational levels) may not, as the fact that a veteran may not appear to be employable within a current competitive job market do not constitute VA criteria for entitlement to a TDIU. As noted above, the sole fact that the veteran is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether she is capable of performing the physical and mental acts required by employment, not whether she can find employment. Van Hoose, 4 Vet App. at 363. Hence, the Board finds that the most persuasive medical opinions to specifically address the question of the veteran's employability militate against the claim for a TDIU. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). For all the foregoing reasons, the Board concludes that no greater disability than that contemplated by the schedular 40 percent rating assigned for lumbar disc disease with radicular symptoms has been shown at any point since the effective date of the initial grant of service connection for that disorder. As such, no staged rating on an extra- schedular basis, pursuant to Fenderson, is warranted, and the claims for a higher initial rating and for a TDIU must be denied. . In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each of the veteran's claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 40 percent for lumbar disc disease, on an extra-schedular basis, is denied. A TDIU is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs