Citation Nr: 1237679 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 05-35 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a thoracolumbar spine disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to August 1991. This matter comes before the Board of Veterans Appeals (Board) on appeal of a March 2004 rating decision which rated a thoracolumbar spine disability 20 percent, effective September 8, 2003. A claim for TDIU benefits was raised during the pendency of the appeal. The Board remanded the Veteran's claims in decisions dated February 2009 and December 2010 for additional development. FINDINGS OF FACT 1. The Veteran's spine disability is manifested by complaints of chronic lumbar back pain that radiates toward the shoulder blades, down to the right hip, and down the left leg to above the left knee; limited range of motion due to pain without clinical evidence of abnormal bladder or bowel, sensory, motor, coordination or reflexes in the lower extremities and without stiffness, weakness, lack of endurance, or fatigue of the low back. 2. The medical and other evidence of record demonstrates that the Veteran's service-connected disability does not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a thoracolumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his back disability should be rated higher than 20 percent disability. He also stated that he was unable to hold a full time job because of his back. The Board referred the issue of entitlement to TDIU benefits which was denied in the most recent supplemental statement of the case. The Board will first address preliminary matters and then render a decision on the merits of the claims on appeal. The Board remanded the Veteran's claims two times. In February 2009 to request that the Veteran identify treatment records pertaining to his back disability dating from June 2007 and for scheduling of a medical examination. The December 2010 remand requested a medical opinion on whether the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). However, substantial compliance, not absolute compliance, with remand requests is required. Dyment v. West, 13 Vet. App. 141 (1999). Because the record shows that the Veteran was requested to identify treatment providers in a March 2009 letter from the RO and the file now includes VA treatment records dated since June 2007, and because the Veteran had a medical examination in June 2009, that satisfies the February 2009 remand. The record also includes a March 2011 medical examination which satisfies VA's duty to assist the Veteran in developing his claims. Therefore, the Board finds that the December 2010 remand has also been satisfied. 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 (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). The Veteran was notified letters dated January 2004, March 2005 and August 2007 of the evidence needed to substantiate a claim for an increased disability rating, and he was provided notice of how VA determines a disability rating and an effective date in the August 2007 letter. In addition, he was informed of the specific rating criteria for his service-connected thoracic/lumbar spine disability in a May 2008 letter. The Veteran was informed in all letters of the steps VA would take to assist him in developing his claim, including providing him with a medical examination and obtaining pertinent records from VA, military and other federal and state agencies, and from private medical or employment providers. The Veteran's claims were readjudicated subsequent to the notice described above. Thus, the Veteran had a meaningful opportunity to participate in the adjudication of his claim. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran has not contended that he has not received proper notice with regard to his claims and the record does not indicate that his claims have been prejudiced by a lack of notice. The record further shows that VA has obtained the VA treatment records and private medical records that were identified by the Veteran. The Veteran received VA medical examinations for his service-connected back disability in January 2004, June 2009 and March 2011. The Board finds that the examination reports provide the Board with sufficient detail and rationale to adjudicate the Veteran's claim. 38 C.F.R. § 3.159(c)(4) (2012). Finally, the Veteran submitted a waiver of his right to a hearing before a Board member in an October 2005 submission. The Board finds that VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the regulation or statue need be undertaken with respect to the claims decided herein. The Board will proceed to a decision on the claims. Increased Rating The Veteran's service-connected thoracolumbar spine disability is currently rated as 20 percent disabling under the criteria for ankylosing spondylitis in Diagnostic Code 5240. 38 C.F.R. § 4.71a (2012). The Veteran seeks a higher disability rating. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). The rating of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination excess movement, or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 portrays the anatomical damage, and the functional loss, with respect to these elements. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran 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 (2012). When rating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). When rating spine disabilities, the Board must discuss any additional limitation of motion that a veteran has due to pain, weakness, or fatigue. Cullen v. Shinseki, 24 Vet. App. 74 (2010). During the pendency of this appeal, the applicable rating criteria for the spine, found at 38 C.F.R. § 4.71a, were amended. The Veteran's claim was received by VA on September 12, 2003, and the most recent revision of the regulations for rating disabilities of the spine were effective September 26, 2003. 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to a veteran applies unless Congress provided otherwise or permitted the VA to do otherwise and the Secretary did so. VAOGCPREC 7-2003 (2003), 69 Fed. Reg. 25179 (2004). The Board will apply both the old and new versions of the criteria to the Veteran's claim. However, the revised criteria may not be applied to any time period before the effective date of the change. VAOPGCPREC 3-2000 (2000), 65 Fed. Reg. 33,421 (2000); Green v. Brown, 10 Vet. App. 111 (1997). The Veteran's service-connected back disability has been rated by the RO under 38 C.F.R. § 4.71a, Diagnostic Code 5293, for rating intervertebral disc syndrome. Diagnostic Code 5293 provided a 60 percent rating for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. A 40 percent rating was provided for severe, recurring attacks with little intermittent relief. A 20 percent rating was provided for moderate, recurring attacks. A 10 percent rating was provided for mild attacks. A 0 percent rating was provided for postoperative, cured intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (prior to September 25, 2003). Prior to September 25, 2003, the rating schedule also provided ratings greater than 20 percent for a thoracolumbar spine disability for vertebral fracture or ankylosis of the spine or segments of the spine, none of which is shown. 38 C.F.R. § 4.71a, Diagnostic Codes 5285-5289 (2003). Prior to September 25, 2003, the rating schedule also provided ratings greater than 20 percent for severe limitation of lumbar spine motion, or sever lumbosacral strain with listing of the whole spine to the side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2003). Words such as mild, moderate, and severe are not defined in the VA Schedule for Rating Disabilities. It should also be noted that use of descriptive terminology such as mild by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). For diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), effective September 26, 2003, a General Rating Formula for Diseases and Injuries of the Spine applies. The General Rating Formula for Diseases and Injuries of the Spine provides as follows: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for 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 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes was also effective September 23, 2003, and provides as follows: A 60 percent rating is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months; A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; A 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months A 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). The record includes medical evidence regarding the Veteran's back that dates from the one-year period before VA's receipt of the Veteran's claim, or from September 12, 2002. The Veteran submitted a January 2003 report by Dr. E.C. which shows that the Veteran had normal spine range of motion, normal lumbar lordosis, normal lumbar spine range of motion, and normal thoracic spine range of motion. A December 2003 VA nursing note indicates that the Veteran requested an examination to support his claim for an increased disability and further notes that the Veteran complained of back pain he evaluated as 6 out of 10. The Veteran was seen in January 2004 by a VA examiner. The examiner noted that the Veteran complained of lumbar pain with pain radiating to his left leg, but not below the left knee that was exacerbated by prolonged sitting or standing. The examiner noted that the Veteran had significant dorsal kyphosis, normal knee reflexes, but no right ankle reflex, and an equivocal left ankle reflex. The Veteran's lower extremities had normal muscle strength, and the examiner noted evidence of degenerative joint disease of both the cervical and lumbar spine. A January 2004 x-ray showed some disk deterioration at L5-S1, which was characterized by the radiologist as a minor abnormality. The examiner noted that the Veteran could extend less than 30 degrees and had flexion of not more than 45 degrees. A July 2007 VA treatment note shows that the Veteran had chronic back pain and sciatica, and that his back pain had increased. A July 2008 treatment note from Dr. P.J., a private physician, states that the Veteran complained of chronic back pain and he thought his back pain was becoming progressively worse over the past few weeks. The Veteran continued to have recurrent episodes of severe low back pain, though not too debilitating with radiation down his left leg. The Veteran's gait was normal and he had normal extension and flexion of the lower spine. The Veteran submitted private treatment records that report a history of complaints of back pain and sciatica. Dr. C.P., M.D., first reported that the Veteran complained of back pain and sciatica in a September 2005 treatment note, and similar reports were provided in December 2005; April, August, and September 2006; and July 2007. A March 2009 consult note by Dr. C.W., M.D., shows that the Veteran had normal coordination and gait, and could walk on his heels and toes and with tandem gait. The Veteran's strength was normal throughout and his muscle tone and bulk were normal. The Veteran denied having bowel or bladder problems. The doctor concluded that the Veteran had some lumbar radiculopathy and back pain. A February 2009 lumbar spine MRI showed mild-to-moderate diffuse spondylosis and degenerative joint disease at all levels examined. A June 2009 VA examiner noted that the Veteran complained that he had problems getting pants on because he had difficulty lifting his right leg. The examiner commented that the Veteran said he was experiencing a flare-up at the time of the examination. The Veteran described a sharp, burning pain in the right sciatic and pain in the left knee that the Veteran attributed to his back, with dull pain in the back. The Veteran characterized the pain level as 6 or 7 out of 10 and that it was on and off for four or five hours. The Veteran stated that he experienced flare-ups about six times a year. The Veteran's gait was mildly antalgic, and the examiner noted normal sensory and motor tests. The examiner reported that the Veteran had flexion of 0 to 65 degrees, limited by pain, and extension of 0 to 20 degrees, limited by pain. A July 2009 treatment report by Dr. M.H., a private physician, noted that the Veteran had a guarded, wide-based antalgic gait. Forward flexion was reported to be to 60 degrees and extension was nil with increased discomfort. August 2009 treatment notes by Dr. K.K., M.D., a physician who was associated with Dr. M.H., shows that the Veteran had flexion to 60 degrees and sensation to light touch over the lower extremities was intact. A May 2010 report by Dr. K.K. sates that the Veteran had guarded heel-and-toe gait, forward flexion to 60 degrees, and extension of less than 10 degrees. The Veteran reported tenderness to palpation over the lower lumbar area and that he was able to cross his right leg ankles and knees. The Veteran had generalized weakness over the lower extremity to knee extension, flexion, ankle dorsiflexion, plantar flexion, and knee flexion against resistance. The Veteran received steroid injections from Drs. K.K. and M.H. and was reported to have experienced limited pain relief as a result. A January 2011 report indicates that the Veteran had forward flexion to 65 degrees without pain and extension to 15 degrees with pain. An April 2011 report shows the same ranges of motion and further notes that the Veteran's cranial nerves were intact and his deep tendon reflexes were symmetrical throughout. In addition, sensory testing did not reveal any abnormal results. A May 2011 report by a physical therapist who worked at the group practice with Dr. K.K., reported flexion of the trunk was 70 percent and extension of the trunk was 20 percent. A September 2011 report by a nurse practitioner states that the Veteran continued to have pain that radiated down the left leg and right legs, and that the pain was continuous, worse in the morning, and worse at night. In addition, walking, sitting, standing, and bending caused his pain to worsen. The Veteran reported experiencing weakness in the lower back, but he denied bladder and bowel problems. The September 2011 report notes flexion was decreased to 65 degrees without pain, and extension was to 15 degrees with pain. No tenderness was noted on palpation of the lumbar. A March 2011 VA examiner noted that the Veteran was employed as a bus driver and that he worked less than 25 hours per week. The Veteran stated that he had no bed rest treatment in the last 12 months and had not experienced any incapacitating episodes in the last 12 months. The back disability did not have a significant impact on his employment because the work periods were relatively limited. The examiner reported that the Veteran could walk from 150 feet to 20 minutes, and that the Veteran did not use a back brace or other assistive device. The Veteran reported that he had no stiffness, weakness, lack of endurance, or fatigue. He did not report any bowel or bladder dysfunction. The Veteran described low back pain that radiated upward to below the shoulder blades. The examiner also reported that the Veteran said he suffered daily flare-ups that were severe in nature and lasted three to five minutes. The examiner reported that the Veteran had normal reflexes, motor ability, coordination, and sensory perception. The Veteran could forward flex to 70 degrees and extend to 20 degrees, both limited by pain. The examiner noted no additional loss of function after repetitions. The examiner also noted that the combination of the Veteran's service-connected back, left wrist, and rib fracture residuals did not significantly impair his ability to perform sedentary and light physical employment. Under the old criteria, the Veteran's spine disability was assigned a 20 percent rating from the date VA received his claim in September 2003 pursuant to Diagnostic Code 5293 for intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). That rating contemplates moderate symptoms compatible with chronic sciatic pain. Essentially, the Veteran's complains of intermittent lower back pain, localized to the lumbosacral spine, and occasional radiation of the pain to the hip and left leg, were the primary symptoms reported. The Veteran stated that his back pain was increased with standing and sitting. The January 2003 report by Dr. E.C. indicated normal range of motion of the Veteran's spine. The December 2003 complaint of back pain did not indicate anything other than the pain. A higher 40 percent rating under former Diagnostic Code 5293 requires severe and recurring attacks with little intermittent relief. The Board finds that the evidence does not warrant a higher rating. Although the Board does not doubt the Veteran's descriptions of his service-connected back disability, the Board believes that the disability is most accurately and objectively described as moderate. The January 2003 treatment report states that the Veteran's thoracic spine was "non-tender to palpation," and there was no tenderness of the lumbar spine on palpation. The examiner noted that the Veteran denied back pain or back stiffness. The December 2003nursing note simply states the Veteran's reported back pain of 6 out of 10. The January 2004 VA examiner noted more specifically the pain experienced by the Veteran, but the Board notes that between the December 2003 note and the January 2004 VA examination, the Veteran underwent surgery to place stents to treat his non-service-connected coronary heart disease. In sum, the evidence relevant to the 14-day period between September 12 and 25, 2003, shows that the Veteran had no loss of range of motion in the back and no evidence of attacks which could be described as moderate and recurring. For the period after September 25, 2003, the evidence continued to show reported exacerbations and flare-ups. However, the Board finds that they more nearly approximated moderate intervertebral disc syndrome with recurring attacks. The Veteran complained of pain and flare-ups, but the flare-ups were of limited durations and frequency, for a few hours a few times per year. They do not rise to the level of severe intervertebral disc syndrome with recurring attacks with little intermittent relief during any of the period under appeal. The Veteran had more than little intermittent relief. Therefore, the Board finds that a rating greater than 20 percent under Diagnostic Code 5293 is not warranted. In addition, the Board finds that severe limitation of lumbar spine motion, vertebral fracture, ankylosis, listing of the spine, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, and abnormal mobility on forced motion were not shown during the pendency of the appeal. Therefore, the former rating criteria don't result in any higher rating under any of the possibly applicable diagnostic codes. While there was limitation of lumbar spine motion, it did not rise to the level of severe and was more moderate in nature, even considering the level of motion available during flare-ups, with flexion limited at most to 45 degrees, even thought the Veteran was seen once during a flare-up. The Board has also considered whether any separate rating would be warranted for limitation of dorsal spine motion. However, the ranges of motion reported are generally of the lumbar spine and the evidence does not show any separate measured limitation of dorsal spine motion that would be independently ratable. Therefore, the Board finds that a separate rating is not warranted for limitation of dorsal spine motion. 38 C.F.R. § 4.71a, Diagnostic Code 5291 (2003). Accordingly, the Board finds that the criteria for a rating higher than 20 percent for a thoracolumbar disability were not met pursuant to the criteria in effect prior to September 25, 2003. The preponderance of the evidence is against the assignment of a higher rating under those criteria. Under the current criteria, the Veteran's back disability may alternatively be rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a (2012). To obtain a disability rating higher than the currently assigned 20 percent under the current spine regulations as they pertain to range of motion, the Veteran would have to demonstrate forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The January 2004 VA examiner reported forward flexion of not more than 45 degrees. The June 2009 VA examiner noted flexion of 0 to 65 degrees, limited by pain. Private treatment reports of July and August 2009 showed flexion to 60 degrees. The January and April 2011 reports show flexion to 65 degrees and the May 2011 private physical therapist reported flexion of "70 percent." A September 2011 report showed flexion decreased to 65 degrees without pain. Finally, the March 2011 VA examiner reported flexion to 70 degrees. The evidence shows that the Veteran has limitation of range of motion due to pain but not due to weakness, incoordination, or fatigue. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995); Cullen v. Shinseki, 24 Vet. App. 74 (2010). Even with the limitations reported, the Veteran's range of motion does not satisfy the criteria for a higher disability rating, and one range of motion was reported during flare-up and the Veteran was not even then limited to 30 degrees or less of flexion. The Board also notes that the evidence does not show further limitation of range of motion based on repetitive motion. The Veteran has not complained that repetitive motion causes limitations of range of motion. Instead, the Veteran has consistently maintained that prolonged sitting, standing, or bending causes an increase in his pain. Nothing was stated that indicates it prevented him from achieving the ranges of motion already noted by examiners, as one range of motion was measured during a reported flare-up. With regard to flare-ups, the Board notes that the Veteran has not indicated he has had incapacitating episodes because of the flare-ups, and he has not indicated he loses range of back motion during a flare-up. The June 2009 examiner reported that the Veteran was experiencing a flare-up at the time of the examination and the Veteran was able to flex his back to 65 degrees, well beyond the 30 degrees found in the rating criteria for the higher 40 percent disability rating. The Veteran denied prescribed bed rest. In sum, the medical evidence shows flexion consistently in excess of 30 degrees. Moreover, there is no evidence of ankylosis. The June 2012 VA examiner who reviewed the Veteran's claims file determined that there was no evidence to sustain a diagnosis of ankylosing spondylitis. Based on a review of the entire record, the Board finds that the evidence does not meet the criteria for a 40 percent disability rating or higher disability rating under the General Rating Formula for Diseases and Injuries of the Spine. The formula for rating intervertebral disc syndrome likewise does not avail the Veteran. To obtain a higher rating of 40 percent under the schedular criteria for intervertebral disc syndrome, the Veteran would have to suffer from incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2012). The evidence does not show that the Veteran has ever been prescribed bed rest by a physician because of his intervertebral disc syndrome symptoms. The evidence suggests that the Veteran tolerates the pain when it occurs, treats it with prescribed medicine, and he appears to be able to walk, drive, and perform other tasks of everyday life, albeit with limitations. Thus, the evidence does not show symptoms sufficient to trigger the criteria for a higher rating based on incapacitating episodes. According, the Board finds that an increased schedular rating may not be assigned under the former or the current schedular criteria. The preponderance of the evidence is against the claim for increase and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single entity, are to be rated separately. 38 C.F.R. § 4.25 (2012); Esteban v. Brown, 6 Vet. App. 259 (1994). Rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). With respect to ratings under former Diagnostic Code 5293, a separate rating may be assigned for symptomatology such as bowel or bladder dysfunction, ankle jerk, or foot drop. Bierman v. Brown, 6 Vet. App. 125 (1994) (the assignment of a separate rating for a neurological disability may be appropriate when its manifestations are distinct from the musculoskeletal disorder). Currently, the General Rating Formula directs rating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). The record does not show objective medical evidence of significant associated neurological symptomatology. The examiners have specifically noted the Veteran denied associated neurologic symptoms, for example like bowel or bladder dysfunction, and there is nothing in the medical evidence that indicates foot drop, ankle jerk, or other symptom of lower extremity disability was clinically observed. Moreover, motor and sensory testing have not shown abnormal results. Therefore, the Board finds that a separate rating is not warranted for any separately ratable neurologic disability because no separate neurologic disability due to the thoracolumbar disability is shown by the evidence of record. Based on the absence of significant objectively demonstrated neurological symptomatology, the Board finds that a separate rating for neurological impairment is not warranted. Although the Veteran has complained or radiating pain and leg weakness and numbness, the evidence does not show that any neurologic disability has been diagnosed that can be rated. A March 2011 peripheral nerves examination found no radiculopathy. The Board finds that since a year prior to the Veteran's September 2003 claim for an increased disability rating, the Veteran's thoracolumbar disability has been manifested by an overall disability picture that more nearly approximates that of a 20 percent disability rating. As the criteria for a higher rating are not more nearly approximated for any period of the appeal period, the Board further finds that staged ratings are not appropriate. Hart v. Mansfield, 21 Vet. App. 505 (2007). To determine whether referral for consideration of an extraschedular rating is warranted, first, VA must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the rating schedule is inadequate to rate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App 111 (2008). In this case, the Veteran has essentially reported experiencing increased pain after periods of standing or sitting and pain that increases when bending. The March 2011 examiner noted that the Veteran continued to work as a school bus driver and that his disabilities did not significantly affect his ability to work because the time periods he performed that work were short in duration. The examiner noted that the Veteran was able to secure and follow gainful employment. Moreover, the Veteran's complaints and manifestations are reasonably contemplated by the rating criteria. There is no indication that there is an exceptional disability picture that is not contemplated by the rating criteria or that he has had frequent hospitalization due to his back disability or marked interference with employment. While there is some interference with employment, it does not rise to the level of marked as the employment continues. Accordingly, the Board finds that referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1) (2012). TDIU The Veteran contends that his service-connected disabilities render him unable to secure or follow substantially gainful employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). Substantially gainful employment is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2012). A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31 (1994). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2012). When a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the case shall be submitted to appropriate VA officials for consideration of assignment of a TDIU rating. 38 C.F.R. § 4.16(b) (2012). The Veteran is service-connected for a thoracolumbar spine disability, currently rated 20 percent; and residuals of rib fracture, tinea pedis, and an excised ganglion of the left wrist, all rated 0 percent. The combined disability rating is 20 percent. Thus, he does not meet the criteria of 38 C.F.R. § 4.16(a). If the Veteran is unable to meet the percentage requirements for eligibility for total ratings set forth in § 4.16(a), such case shall be submitted for consideration in accordance with 38 C.F.R. § 4.16(b) if the evidence shows that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. The medical evidence shows that a January 2004 VA examiner noted that the Veteran said that he had no current problems caused by his service-connected residuals of rib fractures. None of the private medical records indicate that the Veteran complained about or sought treatment for his service-connected ribs, tinea pedis, or left wrist disabilities. The March 2011 VA examiner reviewed the Veteran's medical records and determined that the Veteran's rib, tinea pedis, and left wrist disabilities were not symptomatic. The Veteran does not claim that the service-connected rib, tinea pedis, or left wrist disabilities prevent him from following gainful employment. The sole basis for his inability to continue full-time employment is claimed to be his back disability. The Board has reviewed the medical evidence above and notes that the Veteran does not meet the criteria for a disability rating in excess of 20 percent for his service-connected back disability. Moreover, the March 2011 VA examiner thoroughly examined the Veteran and determined that the back disability, in addition to the other service-connected disabilities, did not significantly impair his activities of daily living or ability to perform sedentary and light physical employment activities. In sum, the examiner found that the Veteran was able to secure or follow a substantially gainful occupation. Although the Veteran's statements with regard to the impact his back disability has on his ability to work are found to be competent, credible, and probative, they are outweighed by the medical evidence and the medical opinion which are against his claim regarding TDIU. In sum, the evidence of record suggesting that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected back disability is outweighed by the medical evidence that shows he is not prevented from securing or following a substantially gainful occupation by his service-connected disabilities. Therefore, the Board finds that referral for extraschedular consideration under § 4.16(b) is unwarranted. Accordingly, the Board finds that the preponderance of the evidence is against he claim for TDIU and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 20 percent for a thoracolumbar back disability is denied. Entitlement to a TDIU rating is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs