Citation Nr: 1002016 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 05-26 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an increased evaluation for lumbosacral disc disease with osteoarthritis and left leg pain, currently assigned a 40 percent disability evaluation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jessica J. Wills, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to August 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board remanded the case for further development in February 2008 and February 2009. That development was completed, and the case has since been returned to the Board for appellate review. The Board also notes that the Veteran has contended that he is unable to work due to his service-connected lumbosacral disc disease with osteoarthritis and left leg pain. However, as previously discussed in the February 2009 remand, that matter is not currently before the Board because it has not been prepared for appellate review. Accordingly, the issue of entitlement to a total evaluation based upon individual unemployability due to service-connected disability (TDIU) is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran's lumbosacral disc disease with osteoarthritis and left leg pain is not productive of unfavorable ankylosis of the entire thoracolumbar spine or of incapacitating episodes having a total duration of at least six weeks during the past twelve months. CONCLUSION OF LAW The criteria for an evaluation in excess of 40 percent for lumbosacral disc disease with osteoarthritis and left leg pain have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5010-5243 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified 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. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Board does acknowledge that the RO did not provide the Veteran with adequate notice prior to the initial rating decision in June 2004. Nevertheless, the RO did send the Veteran letters in March 2004, May 2008, and June 2008, which did meet the notification requirements collectively. The Board finds that any defect with respect to the timing of the notice requirement was harmless error. In this regard, the Board notes that, while adequate notice provided to the Veteran was not given prior to the first agency of original jurisdiction (AOJ) adjudication of the case, notice was provided by the AOJ prior to the transfer and certification of the Veteran's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the Veteran's claim for an increased evaluation was readjudicated in a supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, and he has taken full advantage of these opportunities, submitting evidence and argument in support of his claim. Viewed in such context, the furnishing of notice after the decision that led to this appeal did not compromise the essential fairness of the adjudication. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004). The Veteran has had a "meaningful opportunity to participate effectively," Dingess/Hartman, and the Board finds that the present adjudication of the appeal will not result in any prejudice to the Veteran. Therefore, with respect to the timing requirement for the notice, the Board concludes that to decide this appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The May 2008 and June 2008 letters notified the Veteran that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice also provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. Specifically, he was informed in the letter of types of evidence that might show such a worsening, including statements from a doctor containing the physical and clinical findings; results of laboratory tests or x-rays; the dates of examinations and tests; and statements from other individuals who were able to describe from their knowledge and personal observations in what manner the disability had become worse. The May 2008 and June 2008 letters also informed the Veteran 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. In addition, the RO notified the Veteran in the notice letters about the information and evidence that VA will seek to provide. In particular, the March 2004, May 2008, and June 2008 letters indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claim, including that VA would request any pertinent records held by Federal agencies, such as military records, and VA medical records. The Veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. The RO also informed the Veteran about the information and evidence that he was expected to provide. Specifically, the March 2004, May 2008, and June 2008 letters notified the Veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. The June 2008 letter also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the March 2004, May 2008, and June 2008 letters stated that it was his responsibility to ensure that VA receives all requested records that are not in the possession of a Federal department or agency. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. His records from the Social Security Administration (SSA) were also obtained and associated with the claims file. In addition, the Veteran was afforded VA examinations in May 2004, August 2008, and April 2009 in connection with his claim for an increased evaluation. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the August 2008 and April 2009VA examinations obtained in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination, and fully address the rating criteria that are relevant to rating the disabilities in this case. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service- connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a SOC and SSOCs, which informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran filed his claim for an increased evaluation in November 2003. He is currently assigned a 40 percent disability evaluation for his lumbosacral disc disease with osteoarthritis and left leg pain pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5243. Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected which in this case would be the General Rating Formula for Diseases and Injuries of the Spine. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of- motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 40 percent evaluation is contemplated when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2009). Further, 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 are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 230 degrees. The normal ranges of motions 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (2009). See also 38 C.F.R. § 4.71a, Plate V (2009). 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (2009). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an increased evaluation is not warranted for the Veteran's lumbosacral disc disease with osteoarthritis and left leg pain. The medical evidence of record does not show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. In this regard, there is no medical evidence diagnosing the Veteran with ankylosis of the spine, and there are none of the previously mentioned symptoms indicative of unfavorable ankylosis. In fact, the May 2004 VA examination found the Veteran to have right rotation to 25 degrees, left rotation to 41 degrees, right tilt to 14 degrees, left tilt to 16 degrees, flexion to 68 degrees, and extension to 10 degrees. Private medical records dated in July 2005 also revealed that he had 10 degrees of flexion, extension, and lateral bending, and 20 degrees of rotation. VA medical records dated in October 2005 further indicated that he had flexion to 80 degrees, extension to 5 degrees, and lateral bending to 15 degrees. In addition, the August 2008 VA examination found the Veteran to have 60 degrees of flexion, 10 degrees of extension and lateral flexion, and 15 degrees of rotation. The April 2009 VA examiner also stated that the Veteran had flexion to 60 degrees, extension to 5 degrees, lateral flexion to 15 degrees, left lateral rotation to 10 degrees, and right lateral rotation to 5 degrees. The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Based on the foregoing range of motion findings, it is apparent that the Veteran's spine is not fixated or immobile. In addition, the medical evidence of record does not show the Veteran to have incapacitating episodes with a total duration of at least six weeks during the past 12 months. As previously noted, an incapacitating episode is defined as 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. In this case, there is no evidence showing that the Veteran had been prescribed bedrest as required by the regulation. In fact, the April 2009 VA examiner observed that the Veteran reported having only two flare-ups of back pain during the previous year. In particular, he indicated that the first episode was in June 2008 and did not require bedrest. The second episode occurred two weeks later, but there was no indication as to whether he required bedrest. Nevertheless, the evidence does not establish that he had at least six weeks of incapacitating episodes during a 12 month time period. After reviewing the record, the Board further finds that a separate disability rating is not warranted because the objective medical evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his service-connected back disability. The Board does observe that private physician submitted a letter in November 2003 indicating that the Veteran's leg pain is related to his low back pain. The May 2004 VA examination also revealed an absent right ankle joint reflex and a trace left ankle joint reflex, and private medical records dated in October 2004 indicated that he described having claudication around a quarter mile and that the sensation in his lower extremities become completely numb. The August 2008 VA examiner further indicated that the Veteran reported having periodic radiation of pain down his legs and noted that his Achilles reflexes were absent and that straight leg rasing was positive. The April 2009 VA examiner also noted that straight leg raising was positive at 40 degrees. Nevertheless, the Veteran is separately service-connected for sciatica of the right lower extremity, and his left leg pain is already contemplated in his current evaluation. Indeed, he is specifically service-connected for lumbosacral disc disease with osteoarthritis and left leg pain. Separate disability ratings may only be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In addition, VA medical records noted that the Veteran did not have any bowel or bladder complaints, and there was no weakness in any extremity. The May 2004 VA examination found that his strength was symmetric with him being able to walk on his toes and heels. Similarly, private medical records dated in July 2005 noted that the Veteran's sensation to light touch and pinprick was intact in the upper and lower extremities and that his motor strength was 5/5 in all groups with only the exception of his right gastroc soleus complex, which was 4/5. His reflexes were +2 and bilaterally symmetrical in July 2005, and his muscle tone was normal. VA medical records dated in September 2005 also noted that the Veteran's knee and ankle reflexes were 2+ and that his power was 5/5. In addition, the August 2008 VA examiner stated that the Veteran's patellar reflexes were full and equal and that both his heel and toe walk were intact. The April 2009 VA examiner further stated that there is no leg weakness or bladder problems. The Veteran did indicate that he had had rectal seepage, but stated that he no longer had such a problem. On the April 2009 VA examination, there was no spasm, weakness, tenderness, or abnormal gait, and the Veteran had good strength. His reflexes were hypoactive at 1+. Therefore, based on the foregoing, the Board concludes that the Veteran does not suffer from additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman, 6 Vet. App. at 129-132. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's service-connected back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. In this regard, the Board observes that the Veteran has complained of pain on numerous occasions. However, the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned 40 percent disability evaluation under Diagnostic Codes 5010-5243. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In fact, the May 2004 VA examiner commented that there was clearly pain at each extreme of range of motion, but indicated that there was no excess fatigability, incoordination, or weakened movement. The August 2008 VA examiner also stated that there was evidence of excessive fatigability on range of motion, but noted there no evidence of incoordination, flare-up, or significant further loss on range of motion post exercise. In addition, the April 2009 VA examiner commented that there was no decreased range of motion due to pain, fatigue, weakness, lack of endurance, or coordination. Therefore, the Board finds that the preponderance of the evidence is against an increased evaluation for the Veteran's lumbosacral disc disease with osteoarthritis and left leg pain. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). In this case, however, there has been no showing that the Veteran's service-connected lumbosacral disc disease with osteoarthritis and left leg pain has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards utilized to evaluate the severity of his disability. In the absence of such factors, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. Moreover, section 3.321(b)(1) does not preclude the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such conclusion on its own. Bagwell v. Brown, 9 Vet. App. 337 (1996). In this case, the Board notes that the RO did not grant compensation benefits on an extraschedular basis. The Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the Board does not find the Veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director or the Under Secretary for review for consideration of extraschedular evaluation under the provisions of 38 U.S.C.A. § 3.321(b)(1). The Board does observe that the Veteran stopped working full- time as of January 2002 and is currently retired. However, the evidence does not show that he is unemployed due solely to his service-connected spine disability. Private medical records dated in July 2005 indicated that the Veteran had a 50 percent reduction in his ability to work due to back pain, yet there was no indication that the treating physician was aware that the Veteran had other nonservice-connected disabilities interfering with his employment. Indeed, VA medical records dated in June 2008 indicated that his shoulder was causing him difficulty working, and as discussed below, SSA found that his primary diagnosis was coronary artery disease. Moreover, the sole fact that 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. Instead, 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). See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2004); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). It is not clear from the evidence of record that the Veteran's lumbosacral disc disease alone is productive of marked interference with employment. The Board further notes that the Veteran was awarded disability benefits from the Social Security Administration (SSA). However, a review of the decision shows that it considered multiple disabilities, including coronary artery disease and osteoarthritis of the left shoulder and lumbosacral spine. In this decision, the Board is only concerned with the impact of the Veteran's service-connected spine disability. Moreover, the criteria utilized by VA and the SSA in determining entitlement to disability benefits are not same, and a determination by SSA is not binding upon VA. See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Odiorne v. Principi, 3 Vet. App. 456, 461 (1992). The law requires VA to make an independent analysis and determination. In this case, VA is not able to consider all the disabilities from which the Veteran suffers in determining unemployability. See 38 C.F.R. § 4.16(a). As such, the grant of SSA benefits is not sufficient to warrant referral for an extraschedular evaluation. Based on the foregoing, the Board concludes that while the Veteran undoubtedly has industrial impairment as a result of his service-connected lumbosacral disc disease with osteoarthritis and left leg pain, as evidenced by his 40 percent disability evaluation, the evidence does not show that the disorder alone precludes gainful employment. The Board would note that "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1 (2009). Based on a review of the evidence of record, the Board is of the opinion that the disability evaluation assigned to the Veteran's lumbosacral spine disability, under the VA Schedule for Rating Disabilities accurately reflects the Veteran's overall impairment to his earning capacity due to that service connected disability. Therefore, an extraschedular evaluation for the Veteran's service-connected lumbosacral disc disease with osteoarthritis and left leg pain is not warranted. ORDER An evaluation in excess of 40 percent for lumbosacral disc disease with osteoarthritis and left leg pain is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs