Citation Nr: 0809757 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 03-15 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for intervertebral disc syndrome (IVDS) on and after September 26, 2003. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The veteran served on active duty from April 1960 to August 1961. This case originally came before the Board of Veterans' Appeals (Board) on appeal from the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO). This claim was remanded by the Board for additional development in September 2004. The case was returned to the Board; however, there was confusion as to the issues on appeal and entitlement to an increased rating for IVDS prior to September 25, 2003 was considered instead of an increase on or after September 26, 2003. Accordingly, the case was again remanded. The proper claim has been readjudicated and the case returned to the Board. In April 2004, the veteran testified at a personal hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the claims file. The veteran appeared at the Hearing pro se. The veteran had a representative at that time and there is no record in the case file of his having revoked his power of attorney. After that hearing his representative continued to assist him with his claim and a written presentation has been made on his behalf. The Board notes that in a statement dated in January 2001 the veteran informed the RO that he withdrew his appeal of the decision on his claim for increase. The RO, however, reviewed the claim de novo under the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002 & Supp. 2007), and issued another rating decision on that basis. The veteran submitted a timely notice of disagreement with the post-VCAA rating decision and a substantive appeal in response to the post-VCAA statement of the case (SOC). Thus, the Board deems the January 2001 withdrawal as voided by subsequent events. See 38 C.F.R. § 20.204(c) (2007). The veteran had perfected an appeal for the issues of entitlement to service connection for hypertension and stroke, to include as secondary to service-connected IVDS, and service connection for arthritis of the left hip. These claims were denied by the Board in April 2007 and September 2004 decisions, respectively. The current decision is limited to the issues cited on the title page. FINDINGS OF FACT 1. IVDS has been primarily manifested by some pain, stiffness, and weakness since September 26, 2003. Ankylosis of the spine, deformity of a vertebral body, incapacitating episodes, and significant neurological deficit are not shown in relation to this disability. 2. The veteran is currently service-connected for IVDS, evaluated as 40 percent disabling and gastroesophageal reflux disease, evaluated as 10 percent disabling. The veteran's overall disability rating is 50 percent. 3. It is not shown that due solely to service connected disabilities the veteran is unable to obtain and maintain substantially gainful employment. 4. The service connected disabilities do not present such an unusual picture so as to render application of the regular schedular provisions impractical. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent on and after September 26, 2003 for intervertebral disc syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5293 (2002), DCs 5285, 5286, 5289, 5292, 5293, 5295 (2003), DCs 5235 to 5243 (2007). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify & Assist The Veterans Claims Assistance Act (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Id. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) notify the claimant that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) as with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, No. 05-0355, slip op. at 5-6 (U.S. Vet. App. January 30, 2008). Further, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Board notes that the third and fourth requirements from Vazquez-Flores take their roots from element 4 from Dingess/Hartman. Some of the notice provided in this case was issued prior to the decisions in Vazquez-Flores and Dingess/Hartman. As such, some notice does not take the form prescribed in those cases. As explained above, the veteran's January 2001 withdraw of his appeal of the decision on his claim for an increase was voided by subsequent events; accordingly, the increased rating claim at issue has been on appeal since before the enactment of the VCAA. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Considering the veteran's claim for an increase, a January 2005 notification letter informed him of his and VA's respective duties for obtaining evidence and asked him to submit evidence and/or information in his possession to the AOJ. A letter accompanying a September 2006 supplemental statement of the case (SSOC) provided proper notice regarding degrees of disability and effective dates. This letter also notified the claimant that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and also provided examples of the types of medical and lay evidence that the veteran may submit or ask the Secretary to obtain. The examples given included VA and Federal treatment records, Social Security determinations, statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work, and statements discussing his disability symptoms from people who have witnessed how they affect him. These letters did not satisfy the VCAA duty to notify with respect to elements (1) and (2) from Vazquez-Flores. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores, slip op. at 12 ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores, slip op. at 9. In this case, the Board finds that the notice errors did not affect the essential fairness of the adjudication. The veteran has shown actual knowledge of what is needed to substantiate his claim, including medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. First, he has continued to submit relevant evidence. Second, at his personal hearing before the undersigned he gave testimony in which a description was made about the effect of the service-connected disability on his daily life. Third, at the veteran's December 2005 VA examination he made statements relaying the current condition of his back and the effect that has had on employment and daily life. For example, the veteran stated that after his back surgery, "the pain in his lower back has become worse." He also stated that after his 1990 retirement he continued to work a few hours a week, part-time, and he described his symptomatology including functional limitations such as only being able to walk a block before he has to stop due to back pain. These statements and actions indicate awareness on the part of the veteran that information about such effects, with specific examples, is necessary to substantiate a claim for a higher evaluation. Significantly, the Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant that demonstrate an awareness of what was necessary to substantiate his claim. Id., slip op. at 12. This showing of actual knowledge satisfies the first requirement of Vazquez-Flores. As the current regulations pertaining to disabilities of the spine, 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2007), contain criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (for example, under those regulations unfavorable ankylosis of the entire thoracolumbar spine is needed for an evaluation of 50 percent), the Secretary must provide at least general notice of that requirement to the claimant. The Board is of the opinion that this is a case where the post-adjudicatory notice and opportunity to develop the case that was provided during the extensive administrative appellate proceedings served to render the pre-adjudicatory section notice error non-prejudicial. Vazquez-Flores, slip op. at 9. The veteran filed his claim for an increase in January 1999 and extensive development has occurred since that time. In September 2004 the Board denied an evaluation in excess of 40 percent for intervertebral disc syndrome for the period prior to September 25, 2003 and remanded the veteran's claim for an increase on and after September 26, 2003. Unfortunately, the subsequent notification letter sent in January 2005 only included the appropriate regulations in effect prior to September 26, 2003 and the veteran's claim for an increase prior to September 25, 2003 was readjudicated rather than the veteran's claim for an increase on and after September 26, 2003. While there obviously was some confusion as to the issue on appeal, the September 2006 SSOC contained citation to and an explanation of the relevant text of the current version of 38 C.F.R. § 4.71a, which told the veteran what needed to be shown to substantiate his claim. The veteran has been given more than general notice that certain requirements must be met for an increased rating; he has been told exactly what needs to be shown. Since that time, the veteran and his representative have had an opportunity to submit additional evidence and the claim was again readjudicated in September 2007 when another SSOC was issued. This SSOC constituted a de novo review of all of the evidence. The Board is aware that in Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the Federal Circuit held that while the VCAA notice need not be contained in a single communication, post-decisional documents (e.g., Statements or Supplemental Statements of the Case) cannot satisfy the duty to notify. However, in the context of this case, there is no reason that an SSOC should be completely ignored. Looking at the entire background of this case, including the two Board remands, the veteran's personal hearing, and the information contained in the September 2006 SSOC, the Board finds that throughout the extensive appeal the veteran has been given sufficient notice and opportunity to develop the case to render this error non-prejudicial. Moreover, the claim was readjudicated in 2007 after all this notice was provided. Regarding any prejudice, the Board finds it telling that the veteran is represented by a veterans' service organization that the Board presumes knowledgeable in the relevant law and procedures and that has not alleged any prejudice to the veteran in the notice that has been given. While the veteran was not given proper notice, for all the reasons above the Board finds that the essential fairness of the adjudication has not been affected by such errors and the Board can consider the claim on the merits. See Sanders, 487 F.3d 881. As to the veteran's claim for TDIU, a January 2005 notification letter informed him of his and VA's respective duties for obtaining evidence and asked him to submit evidence and/or information in his possession to the AOJ. This letter also asked him to submit information concerning all of his work experience/history. While the January 2005 notification letter did not include a discussion of what exactly the veteran needed to show to be entitled to TDIU, the Board finds that he has not been prejudiced. The veteran has shown actual knowledge of what is needed to substantiate this claim by his actions and statements. The veteran has submitted a March 2001 statement from a physician who reports that the veteran is totally and permanently disabled and is unemployable because of low back pain and left hip pain. The veteran has continually asserted that this statement shows that he is unemployable by virtue of his service connected disabilities. As such, the Board finds that the notice error did not affect the essential fairness of the adjudication. See Sanders, 487 F.3d 881. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record VA treatment records, private medical records, hearing transcripts, and service treatment records. There is no indication that any other treatment records exist that should be requested, or that any available pertinent evidence has not been received. A VA examination was provided in connection with these claims. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating The veteran asserts that IVDS is worse than evaluated on and after September 26, 2003. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, as here, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (2007). The Board acknowledges that a claimant 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The criteria for evaluating diseases or injuries of the spine were amended in September 2002 and September 2003. When a law or regulation changes after a claim has been filed but before the administrative appeal process is concluded, VA must apply the regulatory version that is more favorable to the veteran. Therefore, the Board must evaluate the veteran's claim under both the former criteria in the VA schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. The Board will lay out the former criteria and the amended criteria for the benefit of comparing the criteria. The applicable rating criteria for intervertebral disc disease were amended effective September 23, 2002. 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002). These changes were incorporated into subsequent changes to the rating criteria applicable to the diseases and injuries of the spine under 38 C.F.R. § 4.71a, which are effective September 26, 2003. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Under the provisions of DC 5285, in effect before September 26, 2003, a 100 percent rating was warranted for residuals of fracture of vertebra with cord involvement, bedridden, or requiring long leg braces. 38 C.F.R. § 4.71a, DC 5285 (2003). With a 100 percent rating special monthly compensation should be considered; with lesser involvements rate for limited motion, nerve paralysis. Id. A 60 percent evaluation was warranted for residuals of fracture of vertebra without cord involvement; abnormal mobility requiring neck brace (jury mast). Id. In other cases residuals of fracture of vertebra were to be rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. Id. A note to that code states that both under ankylosis and limited motion, ratings should not be assigned for more than one segment by reason of involvement of only the first or last vertebrae of an adjacent segment. Under the provisions of DC 5286, in effect before September 26, 2003, a complete bony fixation (ankylosis) of the spine at a favorable angle warranted a 60 percent rating. 38 C.F.R. § 4.71a, DC 5286 (2003). Complete bony fixation of the spine at an unfavorable angle, with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type) warranted a 100 percent rating. Id. Under the provisions of DC 5289, in effect before September 26, 2003, favorable ankylosis of the lumbar spine warranted a 40 percent rating and unfavorable ankylosis warranted a 50 percent rating. 38 C.F.R. § 4.71a, DC 5289 (2003). Under the provisions of DC 5292, in effect before September 26, 2003, a 10 percent rating was warranted for slight limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, DC 5292 (2003). A 20 percent evaluation was warranted for moderate limitation of motion of the lumbar spine. Id. The highest rating allowable pursuant to that diagnostic code, 40 percent, was warranted upon evidence of severe limitation of motion of the lumbar spine. Id. Under DC 5295, in effect before September 26, 2003, lumbosacral strain warranted a noncompensable evaluation when manifested by slight subjective symptoms only. 38 C.F.R. § 4.71a, DC 5295 (2003). A 10 percent rating is assigned when there is characteristic pain on motion. Id. A 20 percent evaluation requires evidence of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position. Id. The highest rating allowable under that diagnostic code, 40 percent, was warranted with evidence of a listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Id. The former provisions of DC 5293, in effect before September 23, 2002, provide criteria for evaluating intervertebral disc disease. Under the former provisions of DC 5293, a noncompensable evaluation is assigned for post-operative, cured intervertebral disc disease. 38 C.F.R. § 4.71a, DC 5293 (2002). A 10 percent rating requires evidence of mild intervertebral disc disease. Id. A 20 percent evaluation necessitates evidence of moderate intervertebral disc disease with recurring attacks. Id. A 40 percent rating requires evidence of intervertebral disc disease which is severely disabling with recurring attacks and intermittent relief. Id. The highest evaluation allowable pursuant to this diagnostic code, 60 percent, necessitates evidence of pronounced intervertebral disc disease with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. Id. Under the revised provisions of DC 5293, in effect from September 23, 2002 to September 25, 2003, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. 38 C.F.R. § 4.71a, DC 5293 (2003). Effective September 26, 2003, the rating criteria applicable to diseases and injuries of the spine under 38 C.F.R. § 4.71a were amended by VA. These amendments included the changes made to the criteria used to evaluate intervertebral disc syndrome, which had become effective in the previous year. 68 Fed. Reg. 51,454 (Aug. 27, 2003). The criteria for evaluating intervertebral disc disease were essentially unchanged from the September 2002 revisions, except that the diagnostic code for intervertebral disc disease was changed from 5293 to 5243. 38 C.F.R. § 4.71a, DC 5243. Specifically, the September 2002 intervertebral disc syndrome changes which were incorporated into the September 2003 amendments stipulate that intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, in relevant parts: A 40% rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60% rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1: For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note 2: If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, DC 5243 (in effect from September 26, 2003). Also according to the new law, DC 5235 (vertebral fracture or dislocation), DC 5236 (sacroiliac injury and weakness), DC 5237 (lumbosacral or cervical strain), DC 5238 (spinal stenosis), DC 5239 (spondylolisthesis or segmental instability), DC 5240 (ankylosing spondylitis), DC 5241 (spinal fusion), DC 5242 (degenerative arthritis of the spine) (see also, DC 5003), DC 5243 (intervertebral disc syndrome) are evaluated under the following general rating formula for diseases and injuries of the spine (unless intervertebral disc syndrome is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), in relevant parts: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10% evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20% rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30% evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40% rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50% evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100% rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, DCs 5235-5243 (in effect from September 26, 2003). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a careful review of the evidence, the Board finds that the preponderance of such evidence is against a finding that the veteran warrants an evaluation in excess of 40 percent for IVDS on and after September 26, 2003 under any of the applicable criteria. In order for a higher evaluation to be warranted the evidence would need to show ankylosis of the spine; incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; residuals of fracture of vertebra without cord involvement, abnormal mobility requiring neck brace (jury mast); severe limitation of motion of the lumbar spine with demonstrable deformity of vertebral body; pronounced intervertebral disc disease with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief; or a combination of separate neurological and orthopedic manifestations of the required severity. The Board notes that the veteran's low back service-connected disability is described for VA purposes as IVDS and not as residuals of a fractured vertebra; however, a February 2001 VA examination report states that the veteran fractured his L5 vertebra while in service. Accordingly, the Board will consider the criteria relevant to residuals of fractured vertebra. The veteran was afforded a VA examination in December 2005. Neurologically, that examination revealed no peripheral neuropathy of either lower extremity. Strength of both lower extremities was normal, the pulses were normal, hair growth was decreased, and warmth was normal. The examiner specifically stated that no neurological impairment due to his low back pathology was found at that time. While the veteran was status post hemilaminectomy (removal of one side of the vertebral lamina) at L5-S1, there was no mention of any deformity of the vertebral body itself, and it was noted that there was no deformity of the spine. Also, there was no report that a neck brace was required. These findings are not in significant conflict with the other medical evidence of record. As such, the Board finds that an evaluation in excess of 40 percent for the veteran's low back disability is not warranted based on the former DC 5285 or DC 5293 in effect prior to September 23, 2002, or that the veteran warrants a separate evaluation for neurological manifestations. For VA purposes, "incapacitating episodes" are periods of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DCs 5293 (2003), 5243 (2007). No such episodes are shown by the evidence of record. Considering ankylosis, the competent medical evidence of record does not show that the veteran has this condition relating to his spine. While "ankylosis" may have varying meanings in medical terminology, for VA purposes "ankylosis" means that a portion of the spine is fixed in flexion or extension. See 38 C.F.R. § 4.71a, DCs 5286 (2003), 5235 to 5243, Note 6 (2007). In this case, the competent medical evidence shows that the veteran has flexion in his spine. For example, at the veteran's December 2005 VA examination it was reported that he had forward flexion of his spine to 90 degrees, and that the range of motion and joint function was not additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use. Accordingly, an evaluation in excess of 40 percent is not warranted based on ankylosis. See 38 C.F.R. § 4.71a, DCs 5286, 5289 (2003), 5235 to 5243 (2007). Absent ankylosis, evidence of a deformity of a vertebral body, or separate neurological manifestations, a schedular evaluation in excess of 40 percent based on limitation of motion is not available. The veteran is competent to report his symptoms. To the extent that the veteran has asserted that he warrants more than a 40 percent evaluation on and after September 26, 2003, the Board finds that the preponderance of the evidence does not support his contentions, for all the reasons stated above. The Board is responsible for weighing all of the evidence and finds that the preponderance of it is against evaluation in excess of 40 percent for IVDS on and after September 26, 2003, and there is no doubt to be resolved. Gilbert, 1 Vet. App. at 55. The Board finds no basis upon which to predicate assignment of "staged" ratings. The Board notes it does not find that consideration of extraschedular ratings under the provisions of 38 C.F.R. § 3.321(b)(1) (2007) is in order. The Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation. The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. Id. In the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: a finding that 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. Id. The Board emphasizes that the percentage ratings under the Schedule are representative of the average impairment in earning capacity resulting from diseases and injuries. 38 C.F.R. § 4.1, states that "[g]enerally, 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." Thus, with this in mind, the Board finds that the veteran's symptoms that warrant the 40 percent evaluation for IVDS on and after September 26, 2003 are clearly contemplated in the Schedule and that the veteran's service-connected disability is not so exceptional nor unusual such as to preclude the use of the regular rating criteria. III. TDIU The veteran contends that he is entitled to a total disability rating based on individual unemployability because he cannot work as a result of his service-connected disabilities. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2007). In this case, the veteran contends that he is unable to maintain substantially gainful employment due to his service- connected disabilities. The veteran is service-connected for IVDS evaluated as 40 percent disabling and gastroesophageal reflux disease evaluated as 10 percent disabling. The veteran's overall combined disability rating is 50 percent. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Court has stated: In determining whether [an] appellant is entitled to a total disability rating based upon individual unemployability, the appellant's advancing age may not be considered. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task [is] to determine whether there are circumstances in this case apart from the non- service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the BVA must determine if there are circumstances, apart from non-service-connected disabilities, that place this veteran in a different position than other veterans with an 80 percent combined disability rating. See 38 C.F.R. § 4.16(a) (1992). Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by the VA General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (December 27, 1991). A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2007). "Substantially gainful employment" is that 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). As further provided by 38 C.F.R. § 4.16(a), "Marginal employment shall not be considered substantially gainful employment." In Moore, 1 Vet. App. at 359, the Court further discussed the meaning of "substantially gainful employment." The Court noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger: It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975) (citation omitted). 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. Where a veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In determining unemployability status, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for service-connected disabilities are met and the service-connected disabilities are found to render the veteran unemployable. 38 C.F.R. § 4.16(a). The sole fact that a claimant 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 and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Even though a veteran does not meet the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). 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). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. 361. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert, 1 Vet. App. 49. As the veteran has neither a single disability evaluated as 60 percent disabling nor a combination of disabilities bringing the combined rating to 70 percent or more, he does not meet the eligibility percentage standards set forth in 38 C.F.R. § 4.16(a) for assignment of a total disability rating based on individual unemployability. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Although the veteran does not meet the percentage standards set forth above, an extraschedular consideration may be applicable, if he is in fact unemployable by reason of service-connected disability or disabilities. 38 C.F.R. § 4.16(b). See also 38 C.F.R. § 3.321(b)(1). The veteran has submitted a March 2001 statement from a VA physician that states that "he is totally and permanently disabled and is unemployable (because of low back pain and left hip pain)." In regard to the veteran's hips, a May 2001 VA examination report states that the veteran has mild to moderate degenerative changes in both hips. A November 2001 VA orthopedic note shows assessments of left hip osteoarthritis and greater trochanteric bursitis left hip, resolving. At the veteran's personal hearing he testified that his legs hurt him worse than his back. The veteran is not service-connected for any hip disability. The veteran was afforded a VA examination in December 2005. The examiner was asked to review the veteran's file, examine the veteran, and then render an opinion regarding the veteran's employability. The veteran's file was reviewed and he was examined. The examiner opined that it is more likely than not that the veteran could work or pursue substantially gainful employment in view of all of his service-connected pathology without regard to his age. The examiner stated that it appears that with the veteran's severe heart problems he would not be able to work; however, this is a non-service- connected disability. The Board has accorded more probative value to the December 2005 VA examination report than to the March 2001 statement from the VA physician. The March 2001 statement relays that the physician is of the opinion that the veteran is unemployable as a result of back pain and left hip pain. This opinion considers a non-service-connected disability. In contrast, the VA examiner made clear that his opinion was made with consideration only of the veteran's service- connected disabilities and without regard to the veteran's age. Such is required for VA purposes. This opinion was also made after a review of the relevant evidence, presumably including the March 2001 statement, and after an examination of the veteran. Accordingly, in the absence of any evidence of unusual or exceptional circumstances beyond what is contemplated by the assigned schedular disability evaluations, the preponderance of the evidence is against the veteran's claim that he is precluded from securing substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service- connected disabilities. The Board concludes, therefore, that a total disability rating for compensation purposes based on individual unemployability is not warranted. In reaching this conclusion, the Board has considered the benefit-of-the- doubt doctrine; however, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable. See Gilbert, 1 Vet. App. at 55. ORDER Entitlement to an evaluation in excess of 40 percent for IVDS on and after September 26, 2003 is denied. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs