Citation Nr: 1216380 Decision Date: 05/07/12 Archive Date: 05/16/12 DOCKET NO. 97-15 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement an increased rating for lumbosacral strain, currently rated 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL Appellant and Dr. Bash ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from September 1984 to March 1992. These matters initially came before the Board of Veterans' Appeals (Board) from a January 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied entitlement to an increased rating for lumbosacral strain, rated 20 percent disabling. As explained below, the Veteran submitted evidence of unemployability, which raised the issue of entitlement to TDIU as part of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In March 1997, the Veteran testified during a hearing before a decision review officer (DRO) at the RO; a transcript of that hearing is of record. In May 2005, Dr. Bash testified on behalf of the Veteran during a central office hearing at the Board in Washington, D.C. before the undersigned; a transcript of that hearing is also of record. The Veteran did not appear at the Board hearing. In March 2003, the Board denied the increased rating claim. In September 2003, United States Court of Appeals for Veterans Claims (the Court) granted a Joint Motion to vacate the Board's decision and remanded the claim to the Board. In June 2004, September 2005, and October 2006, the Board remanded the increased rating claim to the RO, via the Appeals Management Center (AMC). In August 2009, the Board remanded both the increased rating claim and the TDIU claim to the RO, via the AMC. For the reasons stated below, the RO/AMC has complied with the Board's remand instructions and the claims are ready for appellate review. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's lumbosacral strain has caused at most moderate limitation of motion with flexion greater than 30 degrees and has not been severe or caused ankylosis. 2. The Veteran is in receipt of service connection for major depressive disorder associated with chronic lumbosacral strain, rated 70 percent disabling, chronic lumbosacral strain, rated 20 percent, tinnitus, rated 10 percent, and bilateral hearing loss, rated noncompensable, with a combined rating of 80 percent. 3. The Veteran's service connected disabilities render him unemployable. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for lumbosacral strain 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, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2011); 38 C.F.R. § 4.71a, DC 5295 (2002). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Under the VCAA, 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) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The parties to the August 2003 Joint Motion found that the Board did not provide adequate reasons and bases in support of its finding that VA provided adequate VCAA notice. Subsequently, in August 2004, July 2006, August 2007, and July 2010 letters, the RO notified the Veteran of the evidence needed to substantiate the increased rating and TDIU claims. These letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the August 2004, July 2006, August 2007, and July 2010 letters complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in a March 2006 letter as well as the August 2007 and July 2010 letters. In addition, in a May 2008 letter, the RO provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records, as well as the records of the Social Security Administration's (SSA's) disability determination, notwithstanding an initial response from SSA indicating that they did not have records relating to the Veteran. The Veteran was also afforded multiple VA examinations. In the Board's June 2004 remand, it instructed the RO to afford the Veteran a new VA examination as to the severity of his lumbosacral strain. In its September 2005 remand, the Board found that, although the Veteran did not appear for the scheduled examination, it did not appear that he was properly notified of the date and time of the examination. Consequently, the Board again remanded the claim for a new VA examination as to the severity of the lumbosacral strain. The Veteran underwent an April 2006 VA examination. However, the examiner noted that range of motion testing was not performed because testing was too painful, and the lumbar spine was not examined. In addition, the Veteran was involved in a December 2005 accident that involved injury to the back. Consequently, the Board in its August 2009 remand ordered another VA examination. That examination took place in April 2010 and, for the reasons stated below, was adequate for rating purposes. In addition a VA opinion was obtained in February 2008 as to whether the Veteran's sciatica and erect1ile dysfunction were related to his service connected lumbar spine disability and a VA opinion was obtained in December 2011 as to whether symptoms of decreased sensation in the lower extremities warranted a diagnosis of radiculopathy. Consequently, the RO complied with the Board's remand instructions and its duty to assist. Moreover, although the Veteran did not testify during the Board hearing, the undersigned took testimony from a physician and held the claims file open for 45 days to allow the submission of evidence that may have been overlooked. This action provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for an increased rating for lumbosacral strain and for a TDIU are thus ready to be considered on the merits. Analysis Lumbosacral Strain The Veteran's lumbosacral strain is rated 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5295. During the pendency of this appeal the criteria for rating disabilities of the spine were amended. In VAOPGCPREC 7-2003, VA's General Counsel held that when a new regulation is issued while a claim is pending, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely "retroactive effects." If applying the new provision would produce such "retroactive effects," VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce "retroactive effects," VA ordinarily must apply the new provision. A new law or regulation has prohibited "retroactive effects" if it is less favorable to a claimant than the old law or regulation; while a liberalizing law or regulation does not have "retroactive effects." VAOPGCPREC 7-2003; 69 Fed. Reg. 25179 (2004). In this case, as shown below, a rating higher than 20 percent is not warranted under either the former or amended versions of the criteria. Under DC 5295, a 20 percent rating was warranted where there was muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. The maximum 40 percent rating was warranted for severe lumbosacral strain, with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in 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. In addition, DC 5292 provided for a 20 percent rating for moderate limitation of motion of the lumbar spine and a 40 percent rating for severe limitation of motion. DC 5293 provided a 20 percent rating for moderate recurring attacks of intervertebral disc syndrome (IVDS). A 40 percent rating was warranted for severe, recurring attacks of IVDS with intermittent relief. A 60 percent rating was warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, and little intermittent relief. DC 5285 provided for 60 and 100 percent ratings for residuals of vertebral fracture; however, as discussed below, the evidence reflects that the Veteran only sustained vertebral fracture as a result of a post service accident. Cf. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). Ankylosis of the lumbar and entire spine also warranted higher ratings under DCs 5286 and 5289; however, as shown below, there has been no ankylosis of the spine in this case. As of September 26, 2003, all diseases and injuries of the spine other than intervertebral disc syndrome are to be evaluated under the general rating formula. IVDS is to be rated either under the General Rating Formula 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 38 C.F.R. § 4.25. Under the amended criteria, IVDS is rated either on the total duration of incapacitating episodes over the past 12 months under the Formula for Rating IVDS 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 evaluation. As shown below, there is no evidence of incapacitating episodes in this case. See Note 1 to Formula for Rating IVDS (defining an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). Note 1 to the General Rating Formula provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic code. Under the general rating formula, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted where forward flexion of the thoracolumbar spine 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is provided for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Normal ranges of motion of the thoracolumbar spine include: Flexion from 0 to 90 degrees; extension from 0 to 30 degrees; lateral flexion bilaterally from 0 to 30 degrees; and rotation bilaterally from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V (2010). Finally, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The RO granted service connection for chronic lumbosacral strain in a December 1992 rating determination and assigned a 10 percent disability evaluation. In a July 1995 rating determination, the RO increased the veteran's disability evaluation from 10 to 20 percent for his chronic lumbosacral strain. In the July 1996 claim on appeal herein, the Veteran requested an increased rating for his lumbosacral strain. Outpatient treatment records received in conjunction with the Veteran's claim reveal that he was seen with complaints of back pain in June 1995. The Veteran reported that the pain became worse when lying down on his side or bending. Physical examination revealed an exaggerated lordosis with no local deformity or focal tenderness. The hips and SI joints were normal. At the time of a July 1995 visit, the veteran reported that he felt much better with the TENS unit. He noted that he could move around better and sit longer. In August 1995, the Veteran was seen with complaints of increased back pain. Symptoms of radiculopathy to the right thigh were reported by the Veteran. Physical examination revealed negative straight leg raising. Strength was 5 and reflexes were found to be 2. X-rays revealed no degenerative joint disease, fracture, or subluxation. A diagnosis of mechanical low back pain was rendered at that time. At the time of a February 1996 visit, the veteran reported having a chronic low back ache. Physical examination revealed tenderness in the LS junction. There was no deformity. Straight leg raising was painful on the right at 70 degrees. A diagnosis of chronic low back pain with radiation to both gluteal areas, worse on the right, was rendered. On the November 1996 VA examination, the Veteran reported having off and on pain. He stated that he had given up his truck driving as a result of the constant pain. He noted that moving a certain way caused the onset of pain or made the existing pain worse. The pain extended into both thighs, more on the left. Physical examination revealed an increased lumbar lordosis. There were no muscle spasms and no trigger points. Range of motion was as follows: forward flexion 75 degrees; backward extension 15 degrees; left lateral flexion to 25 degrees; and right lateral flexion to 20 degrees. Neurological examination revealed patellar reflexes 2 with reinforcement. Achilles reflexes were 2 without reinforcement. There was no weakness of any muscle groups from the hips down. The examiner noted that a CT scan performed in March 1996 had revealed mild narrowing of the disc space at L4-5 with no evidence of significant posterior protrusion. The examiner stated that the study revealed an essentially negative lumbosacral spine. A diagnosis of chronic lumbosacral strain was rendered. Additional outpatient treatment records obtained reveal that at the time of a December 1996 visit, the veteran was noted to have limited low back movements. An additional examination performed the same day revealed tenderness over the paraspinal muscles of the lumbar spine. Range of motion was limited and painful. Straight leg raising was positive. A diagnosis of lumbosacral strain, R/O herniated disk, was rendered. During the March 1997 RO hearing, the Veteran indicated that he was receiving treatment for his back at the Waco VAMC. He reported that he was taking medication for the pain and that he had been using a TENS unit since 1993. The Veteran stated that he used a cane to help him walk. He testified that when he did a lot of walking or stood for an extended period of time, his legs and hips would hurt. The Veteran stated that he had problems sitting for a long time, bending, standing for a long time, or walking a good distance. He also reported having pain in his hips, the center of his back, and right behind the legs. He noted that he mostly had a sharp stabbing pain. He stated that the pain radiated down his legs. He also noted having trouble tying his shoes. The Veteran testified that he had a lot of pain which kept him awake and caused him to get up in the middle of the night. He stated that he occasionally slept on the floor. On the August 1997 VA examination, the Veteran reported having pain, stiffness, and difficulty staying in one position. He noted that he was unemployed as it was difficult to get a job due to his back problems. The Veteran took medication and used a TENS unit for his back pain. He reported having to miss a lot of work due to his back. He stated that the pain was mostly in his low back, on the left side, and the left hip, radiating down the back of his left thigh. He also noted that he had days where the pain increased and it made it difficult for him to move. The exacerbations lasted up to two days. He reported that when this occurred, he doubled his medication and used heat and a massage. Physical examination revealed no deformity or atrophy. There was tenderness over the sacral area. There was also tenderness over the right SI joint and the right paraspinous muscles. There were no postural abnormalities, fixed deformity, or atrophy of the muscles. Range of motion was as follows: forward flexion 90 degrees; backward extension 10 degrees; left and right lateral flexion 35 degrees; and left and right rotation 30 degrees. There was some grimacing with movement and definite pain with palpation. There was no evidence of neurological involvement. The examiner noted that the Veteran did complain of a numb achy feeling in the left posterior thigh. The examiner observed that a January 1997 MRI had shown unremarkable lumbar imaging with no abnormalities. He further noted that a CT scan of the lumbar spine done in March 1996 had revealed some mild narrowing of the L4-5 disk space with no evidence of significant posterior protrusion disk material. A diagnosis of lumbosacral strain was rendered. The examiner stated that pain was visibly manifested with movement of the back. He further reported that there was no muscle atrophy and that no functional impairment was present due to impairment. On the October 1998 VA examination, the Veteran reported progressively worsening pain in his lower back and the right sacroiliac region. He also noted numbness and tingling in the left lower extremity off and on and less often numbness in the right lower extremity. The examiner observed that the pain in the veteran's low back and right sacroiliac region was constant and associated with weakness, stiffness, fatigability, and lack of endurance. The veteran used Robaxin, Naprosyn, and a TENS unit. He had flare-ups of his low back pain which were quite severe. These occurred about two times per month, lasting about two days at a time. They were precipitated by excessive activity and excessive sitting and standing. They were alleviated by rest, massage, and medication. The Veteran had additional limitation of motion and functional impairment during the flare-ups. He used a cane to walk. The veteran reported that he was a truck driver and stated that he was unable to sit and drive for prolonged periods of time. He noted that he had to frequently change jobs because of this. He also reported having difficulty with excessive sitting or standing. Physical examination revealed tenderness in the lumbosacral area and the sacroiliac region. There was some paravertebral muscle spasm and evidence of painful motion in the lumbosacral area and right sacroiliac region. There was no postural abnormality or fixed deformity. Neurologic examination revealed normal deep tendon reflexes. There was no motor weakness in the right or left lower extremities. Deep tendon reflexes were normal in both lower extremities. There was no muscle wasting or atrophy. Pinprick sensation was impaired in the left lower extremity only. Range of motion was as follows: flexion to 85 degrees; extension to 50 degrees; right lateral flexion to 15 degrees; left lateral flexion to 20 degrees; and rotation to 60 degrees on both sides. Active and passive ranges of motion beyond these levels were painful. X-rays of the lumbar spine and pelvis were normal. EMG studies were negative for radiculopathy and distal neuropathy. A diagnosis of chronic lumbosacral strain was rendered. On the August 2002 VA examination, the Veteran reported that he was a contract truck driver. He stated that he drove throughout the Untied States. The Veteran reported having pain, weakness, stiffness, lack of endurance and fatigability. He treated his lumbar spine with NSAIDS, a TENS unit, muscle relaxers, rest, and topical massage. The Veteran stated that he had back flare-ups if he sat for 3 or 4 hours or slept the wrong way, which caused severe pain. He noted that the pain lasted up to 12 hours and would cause him to lose 50 percent of his back function. The veteran denied using a cane, crutches, or a brace. The Veteran stated that his functioning was adversely affected. He indicated that he could not participate in any sporting activities or play with his 13 year old daughter. The Veteran also reported having difficulty being intimate with his significant other. Physical examination revealed that the veteran walked without the use of a mechanical aid. The Veteran reported his pain level as 7 on a scale of 1 to 10. The spine was in a straight line. There was no evidence of muscle atrophy, muscle rigidity, muscle spasm, or muscle wasting. Palpation of the spinous process revealed no tenderness. There was tenderness of the musculature of the back at the level of L3, L4, and S1. The veteran also had pain to tenderness at the posterior superior iliac spine, on both the left and right sides. He also had some pain and weakness with standing on his heels and walking, complaining that the pain was in the back of his thighs and went down to his knees from his hips. The Veteran was able to walk on his toes. He was unable to squat and raise because of pain in his lumbar spine. Range of motion was as follows: left lateral bend to 50 degrees; right lateral bend to 50 degrees; forward flexion to 65 degrees; and backward extension to 5 degrees. There was no additional limitation noted on repetition of movement during physical examination due to pain, fatigue, incoordination, weakness, or lack of endurance. X-rays of the spine and sacroiliac joint were normal. EMG/NCV studies were also reported as normal. A diagnosis of chronic lumbar spine strain was rendered. During the May 2005 Board hearing, Dr. Bash testified that he reviewed the Veteran's claims file and that the Veteran had been experiencing spasms in his back consistent with an injury to the nerve. He also indicated that the Veteran's symptoms, including radiculopathy, were consistent with sciatica. Dr. Bash also noted that the Veteran had chronic back problems as far back as 1991, which would make it difficult for him to find employment because an employer would not likely hire someone with such a problem and discriminate against them. Dr. Bash indicated that the Veteran's spasms, pain, and sciatica warranted a rating higher than 20 percent. In his June 2005 written opinion, Dr. Bash found that the Veteran had back sciatica and spasm since at least 1994, and that it is well known that injuries to the spine early in life often lead to advanced degenerative changes later in life due to the resultant ligament laxity and spine instability. He cited medical literature indicating that tearing of ligaments and subluxation are manifest by local symptoms of low back pain accentuated by the motion that stretches the ligaments and, eventually, symptoms of localized degenerative arthritis are superimposed. His rationale was that the Veteran "had not cleared back spasms in 1994," that he had sciatica since 1995 with pain radiating to the left and/or right gluteal regions, that the Veteran had erectile dysfunction likely due to his spinal disc disease, and that the Veteran had abnormal X-rays that document disc abnormality at the L4-5 region and this correlates well with his symptoms. Documents prepared in connection with a Texas Workers Compensation Status Report reflect that on December 27, 2005, the Veteran was separated from a truck he was driving and was involved in a roll over. A Limestone Medical Center X-ray report of that date indicated that there were compression fractures of the L1 and L2 vertebral bodies. A CT scan dated the following day indicated that there was a history of motor vehicle accident and back pain, and contained an impression of compression fracture of the upper endplate of L1. An X-ray taken later that day again indicated that there were fractures of the L1 and L2 vertebral bodies and mild narrowing of the L1-2 disc space height, and no spondylolisthesis. On the April 2006 VA examination, pain was noted with an onset of 1986, but the location and distribution of the pain was noted as across the low back, radiating to both legs to a little below the knees and with intermittent numbness, since the December 2006 automobile accident. The examiner noted, "no sciatica clinically and by neurologist or by EMG NCV prior to December 27, 2006 accident." The examiner noted that the Veteran claimed erectile dysfunction that began "forever," but later stated that it was since the accident. The Veteran indicated that he was not working since the accident, and his wife had to help him put his pants and shows on. Range of motion testing was not performed because, according to the examiner, the Veteran stated that his spine was too painful for range of motion testing, and he had a low back brace connected with a metallic bar to a chest brace. Sensory and motor examinations were normal, reflexes were normal, there were no rectal complaints, Lasegue's sign was performed with the Veteran sitting down and was positive on the left side. The back was not examined. The diagnosis was status post workers compensation accident on December 27, 2006, with vertebral fractures, status post kytoplasty, complicated according to the Veteran with erectile dysfunction. Left radiculopathy. The examiner noted that prior to the December 27, 2006 Workman's Compensation accident, there was a previous diagnosis of lumbosacral strain with normal neurologic and EMG/NCV examinations, and with no diagnosis of erectile dysfunction or sciatica. In his opinion, the examiner indicated that the Veteran's sciatica and erectile dysfunction did not exist prior to the December 2006 accident, based on history, neurologic findings, VA examination finding, and EMG, NCV, and X-ray findings. Therefore, the examiner concluded, the erectile dysfunction and sciatica were not secondary to the 1986 low back injury. A December 2006 Physical Medicine and Rehabilitation Associates treatment note indicated that the Veteran was having difficulties with erectile dysfunction since his accident and that his spouse stated that sex had not been satisfactory since the accident, but, before that, there were no problems. The prior back injury was noted. On EMG testing, there was no evidence of any radiculopathy in the lumbosacral spine, but the examining physician, Dr. Molnar, could not say with certainty that the anal sphincter was intact because he could not perform the examination due to the fact that the Veteran "simply would not spread his cheeks." An October 2007 VA treatment note indicated that neurological examination showed no gross motor or sensory losses, with deep tendon reflexes 2+ and motor strength 5/5 throughout. A February 2008 opinion by the physician who performed the April 2006 VA examination reiterated the conclusion that the sciatica and erectile dysfunction did not exist prior to the December 2006 accident. The physician elaborated that a 1996 CT scan of the spine showed mild narrowing of L4-5 which was not present on 2005 lumbar spine X-rays and not present on 2006 MRI, which did show compression fractures of L1 and L2 but no abnormalities on other discs, including L4-5/. According to the physician, this meant that the 1996 CT scan analysis may have been a matter of interpretation and he therefore concluded that there was no IVDS at that time, as proven by negative EMG/NCV report and neurologic examinations afterwards. Thus, he concluded there was no sciatica prior to the December 2006 accident. As to erectile dysfunction, the physician noted that the Veteran stated it began after the December 2006 accident and that he had the following risk factors for erectile dysfunction: hypertension, pre-diabetes, dyslipidemia, smoking 1pack of cigarettes daily, and depression. He therefore concluded that the erectile dysfunction was not due to the in-service spine injury. On the April 2010 VA examination, daily pain in the lumbosacral area with onset in 1986 was noted with no distribution into the lower extremities and no paresthesias in the lower extremities. There were no incapacitating episodes in the previous 12 months, and no associated features or symptoms such as radiation to the lower extremities or paresthesias or bowel or urinary symptoms. The Veteran was wearing a lumbar brace. He could walk up to half a block and could stand for 15 minutes. The spine was symmetrical and the gait was wide based and posture had left shoulder droop. Forward flexion of the thoracolumbar spine was 0 to 55 degrees, extension 0 to 15 degrees, lateral flexion and rotation were 20 degrees on the right and 15 degrees on the left. There was end range pain in all directions and continued pain with 3 repetitions, but no change in the range of motion of the lumbar spine. There were no muscle spasms or other postural abnormalities, but the examiner noted that there was a 2005 kyphoplasty that was unrelated to the lumbar spine. There was guarding and localized tenderness. There was no lumbar spine ankylosis. Sensation was intact in both lower extremities on sensory examination, and muscle strength was fair plus, i.e., between 3 and 4 out of 5 on motor examination. Reflexes were symmetrical bilaterally, rectal examination showed intact volitional control, Lasegue's sign was negative bilaterally, and there were no non-organic physical signs. The diagnosis was chronic moderate to moderately severe lumbosacral strain, and X-rays showed vertebroplasty with less disc space height at L1-2. On the January 2011 VA general medical examination conducted in connection with the TDIU claim as discussed below, range of motion was flexion to 70 degrees, extension to 20 degrees, lateral flexion to 30 degrees bilaterally, left rotation to 20 degrees, and right rotation to 30 degrees, with no additional limitations after 3 repetitive movements and no pain on motion. On neurologic examination, reflexes were normal, sensory examination showed vibration testing of the right and left lower extremities normal but pain/pinprick sensation was decreased in the tow, with normal position sense and light touch and no dyesthesias. Detailed motor examination was a normal 5 for the hips, knees, ankles, and great toes, and muscle tone was normal with no muscle atrophy, spasm, or other muscle abnormalities. In a December 2011 opinion, the same VA physician who conducted the January 2011 VA examination concluded that findings of decreased sensation to pain and pinprick to the toes of both of the Veteran's lower extremities did not likely ("less likely than not") warrant a diagnosis of radiculopathy related to service connected lumbar strain. His rationale was that the Veteran was diagnosed with diabetes in 2006, had been treated for diabetes for 5 years, there were notes in the treatment records showing poor glucose control, and the Veteran had been treated for diabetic foot ulcers which could show poor control of blood glucose. Moreover, EMG/NCV studies indicated no radiculopathy. Therefore, the physician concluded that the decreased sensation was more likely due to diabetic peripheral neuropathy. The above evidence reflects that the criteria for an evaluation in excess of 20 percent for lumbosacral strain have not been met under the old or new criteria, for the following reasons. As noted above, a 40 percent disability evaluation is assigned under DC 5295 for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forwarding bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. At the time of the veteran's November 1996 VA examination, there were no muscle spasms or trigger points. The veteran was able to forward flex to 75 degrees. There was also no weakness of any muscle groups reported. Moreover, at the time of the veteran's August 1997 VA examination, there was no deformity or atrophy found. There were also no postural abnormalities. Forward flexion was noted to be to 90 degrees at that time. In addition, at the time of the veteran's October 1998 VA examination, there were no postural abnormalities or fixed deformities found. There was also no muscle wasting or atrophy present. The veteran had forward flexion to 85 degrees. Moreover, X-rays of the lumbar spine and pelvis were normal and EMG studies were negative for radiculopathy or distal neuropathy. Finally, at the time of the Veteran's August 2002 VA examination, his spine was noted to be in a straight line. There was no evidence of muscle atrophy, muscle rigidity, muscle spasm, or muscle wasting. Forward flexion was to 65 degrees. X-rays of the spine and sacroiliac joint were normal as were EMG/NCV studies. There were similar findings on the more recent treatment records and VA examinations, most recently on the April 2010 and January 2011 VA examinations, on which there was a symmetrical spine, there were no muscle spasms or postural abnormalities, and forward flexion was to 55 degrees. While Dr. Bash testified that the Veteran had muscle spasms, he did not examine the Veteran, and the Board finds that specific, contemporaneous findings of no muscle spasms are more probative than subsequent statements finding muscle spasm based on interpretation of prior treatment records. In any event, even findings of muscle spasm would not itself warrant a rating higher than 20 percent under DC DC 5295. Rather, as the above evidence reflects that there was no listing of whole spine to opposite side, a positive Goldthwaite's sign, marked limitation of forwarding bending in standing position, loss of lateral motion with osteoarthritic changes, narrowing or irregularity of the joint space, or abnormal mobility on forced motion, an increased evaluation is not warranted under DC 5295. An increased evaluation is also not warranted under DC 5292. The evaluation may be based on actual range of motion or the functional equivalent of loss of motion. At the time of the Veteran's August 1996 VA examination, he was found to have forward flexion to 75 degrees; backward extension to 15 degrees; left lateral flexion to 25 degrees and right lateral flexion to 20 degrees. At the time of his August 1997 VA examination, the veteran was noted to have forward flexion to 90 degrees; backward extension to 10 degrees; left and right lateral flexion to 35 degrees; and left and right rotation to 30 degrees. Moreover, at the time of his October 1998 VA examination, the veteran had flexion to 85 degrees, extension to 50 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and rotation to 60 degrees on both sides (apparently 30 degrees on each side). At the time of his August 2002 VA examination, the Veteran was noted to have left lateral bending to 50 degrees, right lateral bending to 50 degrees, forward flexion to 65 degrees; and backward extension to 5 degrees. On the April 2010 VA examination, forward flexion of the thoracolumbar spine was 0 to 55 degrees, extension 0 to 15 degrees, lateral flexion and rotation were 20 degrees on the right and 15 degrees on the left. On the January 2011 VA examination, flexion was to 70 degrees, extension to 20 degrees, lateral flexion to 30 degrees bilaterally, left rotation to 20 degrees, and right rotation to 30 degrees. The reported ranges of motion do not demonstrate overall severe limitation of motion. This conclusion is supported by the normal range of motion figures given in Note 2 of the General Rating Formula, which reflect that the Veteran's flexion has at all times been at least half of the normal 90 degrees, extension has been at least 5 degrees out of 30, and lateral flexion and rotation have been at least half of the normal 30 degrees. As such, the criteria for a 40 percent disability evaluation under 5292, requiring severe limitation of motion, have not been met. The Board has also considered the whether any higher rating is warranted under the DeLuca factors and 38 C.F.R. §§ 4.40, 4.45, 4.59. In this regard, the Board notes that the veteran has reported having pain at the time of every VA examination. At the time of the August 1997 VA examination, the examiner indicated that there was some grimacing with movement and definite pain with palpation. Pain was also visibly manifested with movement of the back. However, the examiner noted that there was no muscle atrophy and no functional impairment as a result of the lumbosacral strain. In addition, on the October 1998 VA examination, the examiner indicated that the pain in the veteran's low back was constant and was associated with weakness, stiffness, fatigability and lack of endurance. While the veteran was noted to have severe flare-ups of pain, with additional limitation of motion and functional impairment during these flare-ups, these occurred only two times per month lasting up to 2 days at a time. Moreover, on the August 2002 VA examination, the veteran reported having back flare-ups when sitting for extended periods of 3 or 4 hours or when sleeping the wrong way. He noted that the pain would last up to twelve hours and would cause him to lose 50 percent of his back function. However, physical examination performed at that time revealed no additional limitation of motion examination as a result of pain, fatigue, incoordination, weakness, or lack of endurance, with repetition of movement. Similarly, on the April 2010 VA examination, while there was end range pain in all directions and continued pain with 3 repetitions, there was no change in the range of motion of the lumbar spine on those repetitions. On the January 2011 VA examination, there was also no additional limitations after 3 repetitive movements and no pain on motion. As the pain and other DeLuca factors have not caused function limitation resulting in range of motion more nearly approximating the severe limitation required for a 40 percent rating under DC 5292, no higher rating is warranted on this basis. The above evidence also reflects that there has been no ankylosis of the spine warranting higher ratings under DCs 5286, 5288, or 5289. Moreover, while there is evidence of vertebral fracture, the evidence, including the medical opinions which are probative for the reasons discussed below, reflect that these fractures were the result of the Veteran's post service accident and not his service-connected lumbosacral strain. The evidence also reflects that the Veteran is not entitled to a higher rating under the General Rating Formula or Formula For Rating IVDS Based on Incapacitating Episodes (which are applicable only as of their September 23, 2002 and September 26, 2003 effective dates). As noted above when discussing whether there was severe limitation of motion warranting a higher rating under DC 5292, the range of motion figures on the April 2010 VA and January 2011 examination reflect that the Veteran has not had forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Rather, forward flexion was to 55 degrees and 70 degrees, and the April 2010 VA examiner specifically found that there was no ankylosis. Consequently, a higher rating is not warranted for the Veteran's lumbosacral strain under the General Rating Formula for the orthopedic manifestations of his lumbosacral strain. The Board has also considered whether a separate rating is warranted for associated objective neurologic abnormalities. Included in this consideration is whether symptoms such as erectile dysfunction, sciatica, decreased sensation in the toes, and vertebral fractures are attributable to the service connected lumbosacral strain or the injuries sustained in the Veteran's post service December 2006 motor vehicle accident. When it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)). In this case, however, the weight of the evidence reflects that these symptoms are attributable to the post service injuries. The most probative opinion of record is that of the April 2006 VA examiner, who reiterated his opinion in February 2008. This physician explained the reasons for his conclusions based on an accurate characterization of the evidence of record, including the Veteran's statements and prior examination including neurologic and radiographic. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). While Dr. Bash indicated in his testimony and written statement, prior to the accident, that the Veteran had symptoms of erectile dysfunction and sciatica related to his service connected lumbosacral strain, the VA physician specifically addressed prior findings that could have been interpreted as showing neurologic abnormalities due to lumbosacral strain, and explained why, in light of subsequent evidence, such an interpretation would not be correct. The VA physician also gave a detailed explanation as to why the Veteran's erectile dysfunction was more likely due to one of the many other risk factors and not the lumbosacral strain, including his analysis of the Veteran's own statements. Finally in this regard, the VA physician in December 2011 similarly gave a detailed explanation of why tingling sensation in the toes was more likely due to diabetes than lumbosacral strain, and this opinion is also entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. In addition, on the most recent VA examinations, in April 2010 and January 2011, there were no significant neurologic abnormalities, no associated features or symptoms such as radiation to the lower extremities or paresthesias or bowel or urinary symptoms, intact sensation in the lower extremities, muscle strength was at least fair plus, there was no muscle atrophy or spasm, reflexes symmetrical and normal bilaterally, rectal examination normal, Lasegue's sign was negative bilaterally, and there were no non-organic physical signs. Moreover, there were no incapacitating episodes. Consequently, the weight of the medical evidence is against a finding that there are any associated objective neurologic abnormalities warranting separate ratings under the General Rating Formula or Formula for Rating IVDS Based on Incapacitating Episodes. The Board has also considered the Veteran's lay statements. The Board notes that the Veteran indicated in an August 2005 statement in support of claim (VA Form 21-4138), that his post service vehicle accident had "seriously aggravated" his service connected injury, and that the two combined to cause his pain level to be very high most of the time and further restricted his day to day living and activities. During the March 1997 RO hearing, the Veteran stated that he had pain in his hips, the center of his back, and behind the leg, but did not know if it was all connected to his back. RO Hearing Transcript, at 2. He also testified to the 1996 MRI showing disc narrowing. Id. at 3. The Veteran's wife wrote in her October 2010 statement that the Veteran's back pain prevented him from performing daily activities and caused sexual difficulties including erectile dysfunction. While this testimony was competent and not entirely lacking in credibility, the Board finds that the specific, reasoned opinions of the VA physicians discussed above are of greater probative weight than the general lay statements of the Veteran and his wife, even when considered along with Dr. Bash's oral and written statements, for the reasons stated above. Consequently, the weight of the evidence is against any higher schedular rating for the Veteran's lumbosacral strain. The Board notes that the VA examinations upon which it relied, including the April 2010 VA examination performed pursuant to the Board's remand instructions and the January 2011 VA examination, were adequate because, as shown by the detailed discussion above, they were based on consideration of the Veteran's prior medical history and described his disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's lumbosacral strain are fully contemplated by the applicable rating criteria. These criteria include both orthopedic and neurologic symptoms and within each category there are detailed criteria including range of motion figures augmented by the DeLuca criteria. All of these criteria were considered in the examination reports and the Board's analysis and, consequently, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the evidence does not reflect that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Veteran has been receiving Worker's Compensation since his post service accident. As discussed in more detail below, the January 2011 VA examiner, whose opinion on this question is entitled to significant probative weight for the reasons stated below, indicated that while the Veteran's service connected back disability did present some difficulty with his working, his back injury from his post service accident more severely impacted his ability than his service connected lumbosacral strain. In contrast, during the Board hearing, the Veteran's attorney, in questioning Dr. Bash, noted that the Veteran had lost his job as a long haul truck driver and was in the process of trying to find a new job, and that the Veteran indicate that he lost jobs quite frequently because of his back. Board Hearing Transcript, at 16. He asked Dr. Bash if this was consistent with what he would expect from the medical records. Dr. Bash indicated that the Veteran would rend to go through cycles of radicular problems due to nerve damage and this would make employment difficult. Id. at 17. He also indicated that if an employer sensed that someone had a chronic disease, they would not want to hire them due to their medical problems and therefore patients with back problems are often unfairly discriminated against in the recruiting and hiring process. Id. at 17. The Veteran and his wife indicating that it was very difficult for the Veteran to maintain employment due to his disabilities, particularly, his back pain, depression, and hearing impairment. The Board finds the specific and reasoned opinion of the January 2011 VA examiner to be of greater probative value than the more general lay statements of the Veteran and his wife as well as the statements of Dr. Bash for the reasons stated above. Consequently, the Board concludes that the Veteran's lumbosacral strain does not cause marked interference with employment, and referral for consideration of an extraschedular evaluation for this disability is therefore not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence reflects that the symptoms of the Veteran's lumbosacral strain do not warrant rating higher than 20 percent under any potentially applicable diagnostic code of the old or new rating criteria. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an increased rating for lumbosacral strain must therefore be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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 Veteran is in receipt of entitlement to service connection for major depressive disorder associated with chronic lumbosacral strain, rated 70 percent disabling, chronic lumbosacral strain, rated 20 percent, tinnitus, rated 10 percent, and bilateral hearing loss, rated noncompensable, with a combined rating of 80 percent. He is thus eligible for consideration for a TDIU on a schedular basis. VA's General Counsel has 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. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved. The Veteran indicated in his November 2010 application for TDIU (VA Form 21-8940) that he had completed 4 years of high school (in addition to 8 years of grade school). He wrote in an October 2010 statement that he was unable to maintain employment due to his service connected disabilities, specifically, his low back pain rendered him unable to perform most physical tasks such as standing, sitting, or walking for short or long periods, bending, and reaching. He also had weakness and numbness in his legs. His low back pain caused him to miss work frequently, leading to termination from employment. In addition, pain and antidepressant medication made it difficult for him to driver and operate machinery alertly and safely. He had been told by more than one company that its insurance rates would rise if they hired him and they feared that he would reinjure his back and file a lawsuit against them if he reinjured himself. His hearing impairment and tinnitus also made it difficult to pick up certain sounds and noise of equipment, machinery, and traffic. The Veteran's wife wrote similarly in an October 2010 letter that the Veteran's depression, low back disability, and hearing impairment prevented him from getting and maintaining employment. The January 2011 VA examiner, after reviewing the claims file and conducting detailed physical examination, concluded that the Veteran was physically able to function in an occupational environment due to his service connected disabilities, with limitations of no lifting over 25 pounds, no repetitive lifting from 15-25 pounds more than 6 times per hour, no climbing ladders, operating a forklift or machinery, no repetitive back bending tasks more than 6 times per hour, no prolonged standing or walking, and no more than 15 minutes of combined standing or walking per hour. As noted, he found that the Veteran's back disability would present some difficulty with working, but that the post service accident more severely impacted his ability to work than the service connected lumbosacral strain. The Board has considered the statements of the Veteran and his wife as well as the opinion of the January 2011 VA examiner. The Veteran and his wife are competent to testify as to the limitations caused by the Veteran's service connected disabilities and the Board finds their testimony credible. While the VA examiner found that the Veteran was physically able to function in an occupational environment due to his service connected disabilities, the limitations that he found applicable are extensive. Given the Veteran's relatively limited educational background and his occupational history as a truck driver, the Board finds that the limitations described by the Veteran, his wife, and the VA examiner due to both his physical and psychiatric service connected disabilities preclude him from realistically obtaining and maintaining any form of gainful employment. Consequently, the Board finds that the weight of the evidence supports a grant of a TDIU. ORDER Entitlement an increased rating for lumbosacral strain, currently rated 20 percent disabling, is denied. Entitlement to a TDIU is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs