Citation Nr: 1237796	
Decision Date: 11/05/12    Archive Date: 11/09/12

DOCKET NO.  10-46 837	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to an increased rating for degenerative disc disease (DDD), at L4-S1, (also referred to as low back disability), currently evaluated as 20 percent disabling.  

2.  Entitlement to service connection for a neurological disability, manifested by numbness of the right leg and foot, to include as secondary to the service-connected low back disability.  

3.  Entitlement to a total rating for compensation based on individual unemployability due to service-connected disability (TDIU).  

4.  Entitlement to service connection for a disability manifested by severe muscular pain in the glutes, upper legs, and internal legs.  





REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Keyvan, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1996 to May 1997.

This matter comes before the Board of Veterans Appeals (Board) on appeal from the April 2009 and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Indianapolis, Indiana and Cleveland, Ohio.  While the October 2009 rating action and notice letter were provided by the Cleveland RO, due to the location of the Veteran's residence, the jurisdiction of his appeal remains with the Indianapolis RO. 

The Board notes that April 2009 and October 2009 rating decisions also denied service connection for depression as secondary to the service-connected low back disability and that in his November 2009 Notice of Disagreement (NOD), the Veteran initiated an appeal of the denial of service connection for this issue.  However, before the matter was certified to the Board, and specifically in a November 2010 rating action, a Decision Review Officer (DRO) granted service connection for depression, evaluating it as 30 percent disabling, effective from September 10, 2008.  The Board finds that this grant of service connection constitutes a full award of the benefits sought on appeal with respect to these issues.  See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997).  The record on appeal contains no indication that the Veteran has appealed the downstream elements of effective date or initial rating for these disabilities; thus, these matters are no longer in appellate status.  

The April 2009 and October 2009 rating decisions also denied the Veteran's claim seeking a higher rating for the service-connected radiculopathy in the left lower extremity; his claims seeking compensable ratings for the service-connected bladder and bowel dysfunction disorders; his claims seeking service connection for a disability manifested by severe muscular pain in the upper back, neck and shoulders, as well as a disability manifested by difficulty breathing and swallowing as secondary to the service-connected low back disability; and his claim seeking entitlement to special monthly compensation (SMC) based on the need for aid and attendance.  While these issues were included in the November 2009 notice of disagreement (NOD) and the November 2010 statement of the case (SOC), the Veteran did not include them on his November 2010 substantive appeal.  In fact, in the substantive appeal, the Veteran specifically stated that he was only appealing the denial of a rating in excess of 20 percent for the service-connected low back disorder, the denial of service connection for a neurological disorder manifested by numbness in the right leg and foot, and the denial of entitlement to TDIU.  See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA].  As such, those issues are not before the Board and will be discussed no further.  

A personal hearing was held in February 2010 at the Indianapolis RO before the Decision Review Officer (DRO). The Veteran testified at this hearing, and a transcript of the testimony is in the claims file.

Also, during the current appeal, and specifically in August 2012, the Veteran testified at a hearing conducted at the Board in Washington, DC before the undersigned Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107 (c) (West 2002 & Supp. 2011) and is rendering the determination in this case.  A transcript of the testimony has been associated with the Veteran's claims file.  

The Board notes that during his August 2012 hearing, the issue of entitlement to SMC pursuant to 38 U.S.C.A. § 1114 (s), as well as a claim for a rating in excess of 30 percent for the service-connected depression, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action.  

Lastly, the Veteran submitted additional evidence to the Board after the appeal was certified to the Board.  The submission of such evidence was accompanied by a waiver of RO consideration.  38 C.F.R. § 20.1304(c) (2012).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran's DDD at L4-S1 has not been manifested by forward flexion of his thoracolumbar spine at 30 degrees or less; favorable ankylosis of the entire spine; unfavorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis of the entire spine.  [Any associated neurological pathology (with the exception of the already service-connected radiculopathy of the left lower extremity, bowel dysfunction and bladder dysfunction) will be discussed in the service connection section].  

2.  The Veteran's DDD at L4-S1 is productive of incapacitating episodes having a total duration of at least six weeks during the past 12 months.  

3.  The competent evidence of record reflects that the Veteran has radiculopathy in his right lower extremity that is secondary to his service-connected low back disorder.  

4.  The competent evidence of record indicates the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment.  



CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in favor of the Veteran, the criteria for a 60 percent disability evaluation for DDD at L4-S1 have been met.  38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5235-5243 (2012).  

2.  Resolving reasonable doubt in favor of the Veteran, his radiculopathy in the right lower extremity is proximately due to a service-connected disability.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).  

3.  The criteria for a TDIU have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide.  

Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for benefits, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim.  See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Specifically, VA must notify the claimant of what is required to establish the benefit sought and must inform him/her that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded.  

Because the Board is granting service connection for radiculopathy in the right lower extremity, as well as the TDIU portion of the Veteran's appeal, these benefits, are being awarded in their entirety.  Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)).  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPCGPREC 16-92, 57 Fed. Reg. 49,747 (1992).  

With regard to the Veteran's claim for a higher rating for his low back disability, the Board notes that the Veteran filed his claim seeking an increased rating for his service-connected low back disability in June 2008.  A letter dated in July 2008 satisfied the duty to notify provisions concerning an increased rating claim.  In particular, the correspondence informed the Veteran of the need for evidence of a worsening of his service-connected low back disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  See also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific").  This letter also provided the Veteran with notice of how disability ratings and effective dates are determined.  In addition, the Veteran was informed of the types of evidence that could substantiate his claim, such as medical records or lay statements regarding personal observations.  He was asked to inform VA of the dates and places of any VA treatment that he had received for his low back condition.  He was specifically notified that VA was responsible for obtaining any federal records, VA records, and any medical examinations, if necessary.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

Accordingly, the Board finds that the procedural requirements of the law pertaining to VA's duty to notify the Veteran have been satisfied.  No further due process development of notification of this claim is required.

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and post-service VA and private medical records have been obtained and associated with his VA claims folder and were reviewed by both the RO and the Board in connection with his claim.  The Veteran's Social Security Administration (SSA) records have also been obtained and associated with the claims file.  In addition, the Veteran testified before the Board in August 2012.  

The duty to assist includes obtaining a medical examination/opinion when such is necessary to make a decision on the claim, as defined by law.  A VA examination with respect to the issue on appeal was obtained in January 2009.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination obtained in this case was adequate, as it was predicated on a review of the Veteran's medical records, an interview of the Veteran and a discussion of his medical history, and the examination fully addresses the rating criteria that are relevant to rating the disability in this case.  Thus, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination concerning the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Schedular Evaluation - Low Back Disability

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.  

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made.  Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59.

In the present appeal, the Veteran is currently assigned a 20 percent disability evaluation for his service-connected low back disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243.  Diagnostic Code 5243 indicates that intervertebral disc syndrome should be evaluated either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome.  The Veteran contends that he is entitled to a rating in excess of 20 percent for his service-connected low back disability.  For the reasons that follow, the Board concludes that a increased rating is warranted.  

On September 26, 2003, revisions to the VA rating schedule established a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  See 68 Fed. Reg. 51454 -51458 (August 27, 2003).  

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability evaluation is contemplated when there is forward flexion of the thoracolumbar spine 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, 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 disability evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent disability evaluation is contemplated when there is unfavorable ankylosis of the entire spine.  

Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012).  

Further, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion.  See 38 C.F.R. § 4.71(a), General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003).  

Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  See Lewis v. Derwinski, 3 Vet. App. 259 (1992).  

Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following:  difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003).  

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability evaluation 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 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

In the present appeal, the Veteran is currently assigned a 20 percent disability evaluation for his service-connected low back disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243.  The Veteran contends that he is entitled to a rating in excess of 20 percent for his service-connected low back disability.  In considering the evidence of record under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board concludes that the Veteran is entitled to an increased evaluation in excess of 20 percent for his service-connected DDD of L4-S1.  

The Veteran was afforded a VA neurological examination in October 2008.  During the examination, the Veteran provided his military history and explained that he was injured in service when he tripped and fell while carrying a generator with three other individuals.  The Veteran reported to experience 'constant pain' in his left leg, a burning sensation in his inner left thigh, and numbness in the bilateral toes, heels, and calves.  The Veteran also reported to have 'massive' low back pain that reportedly brought tears to his eyes.  Upon conducting a physical examination of the Veteran, the examiner noted that he was unable to grade the Veteran's motor strength in his lower extremities, "as there is incomplete effort in all major muscle groups of the lower extremities."  The examiner did observe a "patchy and inconsistent reported sensory loss to the peripheral pulse in the bilateral legs and trunk".  Based on his evaluation of the Veteran, the examiner diagnosed the Veteran with chronic low back pain with radicular symptoms.  According to the examiner, the reduced left Achilles reflex is suggestive of an old radiculopathy, but the current neurological examination was limited by the Veteran's "incomplete effort" which could largely be due to the Veteran's back pain.  

The Veteran underwent a magnetic resonance imaging (MRI) of the lumbar spine on October 21, 2008, the impression of which revealed "[s]pondylitic changes...mainly at L4-5 and L5-S1", "a small left paracentral lateral protrusion at L5-S1" and "a small right lateral protrusion of the L4-5."  

The Veteran was seen by S. S., D.O. in October 2008, at which time he underwent another magnetic resonance imaging (MRI), the results of which showed "[d]isc space collapse and facet disease at L4-5 and L5 to the sacrum. . . ."  Based on his evaluation of the Veteran, as well as his review of the diagnostic records, Dr. S. assessed the Veteran with "low back pain associated with degenerative disc disease at L4-5 and L5 to the sacrum with left lower extremity radicular pain with no distance patterns of pain."  Dr. S. recommended that the Veteran undergo an electromyography (EMG) to determine whether there were any neurological abnormalities, and further recommended that the Veteran try physical therapy three times a week for a month to help manage his pain level.  

In October 2008, the Veteran presented at the Indianapolis VA Medical Center (VAMC) with complaints of severe low back pain that radiates into his lower extremities.  According to the Veteran, he has continued to experience low back pain since injuring his back in service and the pain has worsened to the point that he feels debilitated and unable to work.  The Veteran was subsequently scheduled for, and underwent an EMG the following day, and a summary of the results reveals normal motor nerve and sensory responses.  While the needle examination showed mildly increased motor unit potentials in the left medial gastrocnemius, the remainder of this examination was otherwise normal.  The VA physician, S.H., M.D. described the results of the study as "essentially normal" and found no definitive electrodiagnostic evidence of neuropathy or radiculoapthy.  

Follow-up records issued by Dr. S.S., and dated from November 2008 to May 2009, describe the status of Veteran's low back and left lower extremity condition and indicate that despite on-going physical therapy and conservative pain management techniques, the Veteran continued to complain of worsening pain in his lower back and left lower extremity.  

The Veteran presented at the Witham Health Services clinic in November 2008, at which time he provided his military history and reported to have injured his back while attempting to lift and carry a generator in service.  According to the Veteran, he has experienced on-going pain in his lower back and lower extremities, as well as a patchy numbness and tingling sensation in his left lower extremity since this in-service incident.  The Veteran further stated that the pain has worsened over the past two and half years.  According to the Veteran, without medication, on a scale of one to ten, (with one being the least level of pain, and ten being the highest), the pain level throughout the entire lumbar region is at a nine, with severe radiating pain in the posterior aspect of the left lower extremity.  With respect to his right leg, the Veteran reported to have pain that primarily travels through the buttock and down towards the back and top of the right knee.  The Veteran claims to experience a slight level of relief from his symptoms with medication, and rates his pain level at a six in the areas previously stated.  The physical therapist, J.R., noted that the Veteran uses a cane and displays an antalgic gait pattern primarily on the left lower extremity.  J.R. further observed decreased weight bearing time on the left as opposed to the right and decreased stride length on the left as opposed to the right.  According to J.R., the Veteran could not tolerate sitting freely at times without significant pain and spasms in the lower back which created observable facial grimacing.  J.R. further described the Veteran's transfer quality as "very poor" and noted that the Veteran had a significant amount of pain with all movement and transfers.  

Upon conducting a physical examination of the Veteran, J.R. could not assess the Veteran's lumbar range of motion due to the Veteran's inability to stand or sit for any length of time.  According to J.R., the Veteran had difficulty achieving a fully erect posture and stood with a slightly forward flexed position.  J.R. also conducted a neurological evaluation of the Veteran and observed positive findings for straight leg raise and slump test both in the right and left lower extremity - the left being worse than the right when it came to the Veteran's pain level.  The Veteran could not discriminate with light touch the digits of the left foot, but could on the right and had decreased sensation to light touch of left dermatome levels L2, L3, L4, L5, S1 and S2.  Based on his discussion with, and evaluation of the Veteran, J.R. assessed the Veteran with ongoing and chronic back pain with a more acute turn in the last month.  According to J.R., the Veteran exhibited multilevel neurological issues in the left lower extremity and a significant amount of pain in the low back and left lower extremity.  It was further determined that the Veteran exhibited an antalgic gait pattern, poor postural awareness and control, and debility with transfers and movement.  

The Veteran was afforded another VA examination in January 2009, at which time he reported to experience stiffness, limited movement, swelling, and pain in his spine, as well as symptoms of pain, weakness, paresthesias and numbness in his lower extremities.  With respect to his neurological symptoms, the Veteran reported a positive history of weakness, paralysis, paresthesias and numbness in his spine and bilateral legs.  The Veteran further stated that he had experienced at least six (and possibly seven or eight) incapacitating episodes within the last year - the first one beginning in September 2008 when he was reaching for his deodorant and fell after losing his balance.  The second incident occurred in October 2008 when he stumbled and fell down two steps.  Despite medication prescribed to help alleviate his pain, the Veteran described ongoing pain and discomfort in his low back and lower leg region since this incident.  The Veteran further stated that since this incident, he has not been able to do anything, and has had to stay in bed and participate in therapy to help mitigate his pain.  
Upon physical examination, the examiner noted that the Veteran walked with a limp and a cane.  The examiner further noted that she was unable to elicit the Veteran's muscle strength in his lower and upper extremities because the Veteran made little to no effort with performing testing secondary to his back pain.  The examiner described the Veteran as very restless throughout the exam, and noted that the Veteran got up off the exam table at least four times.  She (the examiner) also observed tenderness over the upper and lower back region and "increase[d] overexaggerated jerking movement throughout [the examination]."  According to the examiner, there was no evidence of spinal ankylosis and the Veteran's range of motion measurements could not be obtained as the Veteran reported that he was unable to bend forward with and without his cane without excruciating agony.  It was further noted that the Veteran was unable to conduct the straight leg raising tests as it hurt too much.  The examiner did not observe any evidence of motor loss in the lower extremities, but did observe findings of sensory loss.  In addition, the Veteran was shown to have a knee jerk and ankle jerk of 2+.  According to the Veteran, he cannot walk on his toes or heels, nor can he perform the tandem walk or bend forward with or without his cane so to conduct his spinal range of motion exercises.  The Veteran also underwent an X-ray of the lumbar spine, the results of which were clear for any evidence of abnormal alignment or motion with flexion or extension, fracture, or significant degenerative changes.  The examiner diagnosed the Veteran with residuals of a lumbar strain with left radiculopathy, and noted that this disability had a severe effect on the Veteran's ability to travel, feed himself, groom himself and drive, and completely prevented him from participating in sports and recreational activities, conducting his chores, bathing, dressing, , and exercising.  

The Veteran was evaluated by A.S., M.D. at Interventional Pain Care Associates in March 2009.  During the treatment visit, the Veteran described weakness in his left lower extremity, complete numbness in his foot, as well as radicular pain.  The Veteran walked with the use of a cane, and reported increasing symptoms when sitting and standing.  He (the Veteran) also described a fair amount of muscle spasms that made it difficult for him to sit for prolonged periods of time, and reported that his range of motion was markedly reduced, with the exception of a mild ability to lateral bend to the left.  According to Dr. A.S.., the examination was somewhat limited due to the fact that the Veteran was unable to sit for prolonged periods of time.  There was diffuse tenderness along the lumbosacral junction, and multiple trigger points and spasms noted.  The straight leg raising test was positive on the left and negative on the right, and the Patrick's maneuvers test produced negative results.  In addition, the Veteran was unable to conduct dorsiflexion and plantar flexion in the left foot and his strength was shown to be 2/5 and 3/5.  In addition, Dr. A.S. observed decreased sensation to light touch in the foot.  Based on his evaluation of the Veteran, Dr. A.S. determined that the Veteran was in a significant amount of pain in multiple areas of the lumbosacral spine as well as the left lower extremity, and discussed possible methods and procedures to help manage the Veteran's pain level.  

Statements submitted by the Veteran's (now former) wife, family members, and friends described the Veteran's ongoing and worsening back pain throughout the years.  In a statement date stamped as received in January 2009, the Veteran's former wife, L.M., indicated that after the Veteran returned from service, he was nowhere near as active as he had been prior to his enlistment  According to L.M., there were times when the Veteran's pain worsened to such an extreme, that he was forced to be laid up in bed for weeks at a time.  L.M. wrote that the Veteran's increasing pain made it difficult for him to conduct day to day activities and simple tasks, such as putting on his socks and shoes.  According to L.M., she would often has to leave work and stop by her house to help the Veteran get dressed, get his socks and shoes on, and/or pick up a dropped item.  

Private operative records dated from September 2009 to January 2010 reflect that the Veteran underwent a left-sided piriformis/sciatic nerve root injection, an L4-L5 lumbar discography, and a series of nerve root injections in the L4-L5 and L5-S1 region.  Prior to the first procedure, the attending physician, R.T., M.D., reviewed the Veteran's medical history and noted that the Veteran presented with a history of pain in the lower back and lower extremities.  Dr. R.T. noted that the pain in the lower extremity radiated in an L5 and S1 distribution and the left lower extremity was more affected than the right lower extremity.  It was further noted that the pain had steadily increased over the past three years, and increased more prominently in October 2008 when the Veteran fell after reaching into a drawer.  The Veteran reported to experience continuous pain that worsened when sitting, standing, exercising and whenever there was a cold sensation over the spine.  He added that the pain improved with walking, lying down, heat, use of his brace, immobilization and analgesics and described the low back pain as aching and stabbing in nature.  Dr. R.T. observed that the Veteran had attempted comprehensive management of his pain, to include exercise, massage, chiropractic management, acupuncture, the use of a brace, physical therapy, warm packs, ice packs, traction and psychological management.  The Veteran rated his pain level at an eight, and noted that he experiences severe sleep impairment as a result of this pain.  See September 2009 Operative Report.  

A February 2010 decision of the SSA shows that the Veteran was granted disability benefits based, in part, on his back problems.  

In an undated self affidavit, the Veteran wrote that throughout the past four years, he has experienced an incapacitating episode requiring complete supine rest at least two to three days a week.  He further reported to have intermittent periods of bed rest that could last a week or even longer.  

The Veteran was seen by A.L., M.D. in August 2012, at which time he was interviewed regarding his medical history.  Dr. A.L. also reviewed the Veteran's claims folder in detail and conducted a physical examination of the Veteran.  According to Dr. A. L., the Veteran used a cane to help him walk, and ambulated with an antalgic gait favoring his right leg.  She described the Veteran's posture as kyphotic and hunched over, and noted that the Veteran exhibited muscle spasms in the left region of the lumbar spine.  Dr. A. L. also observed tenderness in the bilateral lumbar as well as the gluteal, sacrum, and trochanter region upon palpation, and further noted that the Veteran experienced pain and tenderness when conducting his range of motion exercises and had severe restriction during flexion, extension and lateral bending.  Dr. A. L. described the Veteran's bilateral lower extremity strength as normal, "but with giveaway weakness throughout due to pain."  She also observed decreased sensation in the left lateral calf, and noted that the Veteran's deep tendon reflexes were preserved and symmetric at the bilateral patella and Achilles.  
Based on her review of the medical records and diagnostic reports, as well as her discussion with, and physical evaluation of, the Veteran, Dr. A. L. assessed the Veteran with degenerative arthritis of the lumbar spine, DDD of the lumbar spine, and chronic low back pain, prescribed the Veteran with medication to help alleviate his pain and scheduled him for a follow up visit.  In her August 2012 follow-up report, Dr. A.L. recommended that the Veteran have two to three days of bed rest a week, as needed, for severe episodes of pain.  

In considering the evidence of record first under the General Rating Formula for Diseases and Injuries of the Spine, the Board finds that the Veteran is not entitled to an increased evaluation in excess of 20 percent for his service-connected DDD of L4-S1.  The evidence of record does not indicate that the Veteran had forward flexion of the thoracolumbar spine at 30 degrees or less, and it also does not show that he had favorable ankylosis of his entire thoracolumbar spine.  Indeed, the medical evidence of record is clear for any definitive range of motion measurements.  While the Board acknowledges the Veteran's inability to perform his exercises due to the severity of his pain, Dr. A. L. did describe the Veteran's flexion, extension and lateral bending as severely restricted (see August 2012 private treatment report) which shows that the Veteran was, in fact, able to engage in these exercises.  Even when taking into account the Veteran's complaints of pain on motion, such complaints do not approximate flexion limited to 30 degrees or less.  The Board does not doubt that the Veteran has pain; however, in light of the fact that the Veteran's ranges of motion were not documented at his examinations, the Board cannot find that his service-connected spine disability equates to limitation of flexion of 30 degrees or less or favorable ankylosis of his entire thoracolumbar spine.  

However, in considering the evidence of record under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board concludes that the Veteran is entitled to an increased evaluation in excess of 20 percent for his service-connected DDD at L4-S1.  Indeed, the Veteran has reported on numerous occasions that he has experienced an increasing number of incapacitating episodes throughout the years.  During the January 2009 VA examination, the Veteran stated that since his October 2008 injury, he has required a significant amount of bed rest and has been unable to perform his usual activities of daily living.  His former wife, L.M., further attested to the fact that the Veteran's low back pain could flare-up to such a degree necessitating bed for weeks at a time.  In addition, the September 2009 operative report documents the Veteran's assertion that rest and immobilization help alleviate his pain.  In the August 2012 treatment report, Dr. A.L. took note of the Veteran's service-connected low back condition and prescribed him with two to three days of bed rest, as needed for severe pain.  In light of the Veteran's assertions regarding his increasing incapacitating episodes, and his ongoing need for bed rest to help alleviate the pain, as well as the August 2012 medical report produced by Dr. A.L. prescribing the Veteran with two to three days of bed rest a week as needed for severe pain, the Board resolves reasonable doubt in favor of the Veteran and finds that a higher rating is warranted under the criteria for intervertebral disc syndrome.  Specifically, if the Veteran has required at least three days of bed rest since August 2012, then it is feasible to believe that he has since experienced 42 incapacitating episodes having a total duration of at least six weeks within the past twelve months.  As such, the Board finds that the number of the Veteran's incapacitating episodes most closely approximates the 60 percent evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  

The Board has also considered whether the Veteran would be entitled to an evaluation in excess of 60 percent under the General Rating Formula for Diseases and Injuries of the Spine.  However, the medical evidence of record is devoid of any findings, treatment, or diagnosis of unfavorable ankylosis of the entire spine.  Indeed, while the Veteran was unable to perform a majority of his range of motion exercises at the November 2008 treatment visit with his physical therapist, and at the January 2009 VA examination, during his August 2012 treatment visit with Dr. A. L., his flexion, extension and lateral bending was described as severely restricted - indicating there to be some level of movement.  In addition, there is no medical evidence diagnosing the Veteran with ankylosis of the spine, or symptoms indicative of unfavorable ankylosis.  Indeed, during the January 2009 VA examination, the examiner did not observe any findings of spinal ankylosis.  Moreover, the Veteran has not been shown to have any of the above-mentioned symptoms cited in 39 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (5) in conjunction with fixed flexion or extension in the thoracolumbar spine.  Thus, a rating in excess of 60 percent under the General Rating Formula for Diseases and Injuries of the Spine is not warranted.  

With respect to Diagnostic Code 5003, the Veteran has currently been assigned a 60 percent disability evaluation for his back disability herein.  Therefore, he has already been assigned the maximum schedular evaluation available under Diagnostic Code 5003, and a higher evaluation is not warranted under those provisions.  

The Board has also considered the provisions of 38 C.F.R. § 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, an increased evaluation for the Veteran's low back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as his symptoms are supported by pathology consistent with the 60 percent rating assigned herein.  In this regard, the Board observes that the Veteran has complained of pain, stiffness, and tenderness as a result of his spine condition, and further acknowledges objective evidence of pain and restricted movement following certain range of motion exercises.  However, the effect of the pain in his lumbar spine is contemplated in the 60 percent disability evaluation assigned herein under Diagnostic Code 5243.  The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation.  

With respect to the Veteran's neurological complications, the Board notes that the Veteran has been already been service-connected and separately rated for radiculopathy of his lower left extremity.  The Board also notes that the Veteran has already been service-connected and separately rated for his bowel and bladder dysfunction as secondary to his service-connected low back disability.  With respect to the Veteran's right lower extremity, the Board acknowledges the Veteran's complaints of radicular pain and numbness in the right lower extremity.  The Board further acknowledges evidence reflecting abnormal neurological findings in the right lower extremity.  However, as the Veteran has filed a claim for service connection for radiculopathy in the right lower extremity, a review of any neurological pathology associated with the right lower extremity will be discussed in greater detail in the service connection section below.  

Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate.  However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted.  
Thus, the Board finds that the current 60 percent disability rating is appropriate for the entirety of the rating period.  38 C.F.R. § 4.71a, Diagnostic Code 5235-5243 (2012).

Based on this evidentiary posture, the Board concludes that the totality of the evidence of record has not shown that the Veteran's service-connected low back disability warrants a rating in excess of 60 percent at any time during the appeal period.  

III.  Extraschedular Consideration-Low Back Disability

The above determinations are based upon application of the pertinent provisions of VA's rating schedule.  In denying the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

The Board finds that the record does not reflect that the Veteran's low back disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1)(2012).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  

In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant'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 extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as 'governing norms' (which include marked interference with employment and frequent periods of hospitalization).  

In this case, the issue of the Veteran's employability will be discussed further in the TDIU section below.  Furthermore, the evidence of record does not reflect that the Veteran's low back disability is so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  The rating criteria for this disability contemplate his symptoms, including pain and restricted movement, and there are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating.  As such, the threshold issue under Thun is not met, and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In short, this service-connected disability does not present such an exceptional or unusual disability picture as to render impractical the application of the regular scheduler standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012).  Referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted.  

IV.  Service Connection - Radiculopathy of the Right Lower Extremity

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the injury was incurred in service.  38 C.F.R. § 3.303(d).  

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002);  Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  

The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability.  71 Fed. Reg. 52744-47 (Sept. 7, 2006).  Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995.  Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made.
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.  

Here, the Veteran contends that he has a disability manifested by pain and numbness in his right lower extremity that is secondary to his service-connected low back disability.  Turning to the Veteran's service treatment records, the Board notes that an August 1995 examination conducted pursuant to his enlistment in the military was clear for any complaints, treatment, or diagnosis of any problems in the lower legs.  Clinical evaluation of the Veteran's lower extremities and neurological system was shown to be normal, and the Veteran had a physical profile of 'P1' at the time of this examination.  See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 'S1' (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)).  The Veteran also denied any history of cramps in his legs, a trick or locked knee, foot trouble or neuritis in his medical history report.  

The remainder of the Veteran's service treatment records focuses on his 1996 in-service back injury and the ensuing pain he experienced in his lower back as well as the radiating pain and numbness he experienced in his lower left leg as a result.  The Veteran visited the military clinic on numerous occasions with complaints of, and seeking treatment for, left lower extremity and low back pain.  However, these treatment records are clear for any complaints of pain or numbness, or any findings of neurological pathology in the Veteran's right lower extremity.  Prior to his separation from service, the Veteran underwent another periodic examination in December 1996 at which time he denied a history of cramps in his legs, a trick or locked knee, or neuritis in the medical history report.   

Moreover, the medical evidence of record does not show that the Veteran sought treatment for any neurological problems in the right lower extremity immediately following his period of service or for many years thereafter.  Indeed, the Board observes that the earliest post-service evidence of record pertaining to problems surrounding Veteran's right lower extremity is his September 2008 claim seeking service connection for a disability manifested by numbness in both legs and feet.  [As previously noted, the Veteran has already been service-connected for radiculopathy in his left lower extremity].  The additional evidence of record pertinent to this claim consists of the October 2008 VA examinations report, the October 2008 VA EMG study, the November 2008 physical therapy report issued by J.R., the January 2009 VA examination report, the June 2009 SSA examination conducted by M.Y.K., M.D., and the Veteran's own lay statements.   

A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection.  Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

In addition to the lack of evidence showing that symptoms of numbness and pain in the right lower extremity manifested during service or within close proximity thereto, the medical evidence of record does not link any current neurological diagnosis to his military service.  Therefore, direct service connection between the Veteran's disability manifested by numbness and pain in his right lower extremity and his period of active service is not warranted.  

In any event, as previously discussed herein, the Veteran asserts that any neurological disorder in his right lower extremity is related to his service-connected low back condition.  

The Veteran was afforded a VA neurological evaluation in October 2008, at which time the examiner observed "patchy and inconsistent reported sensory loss to [the] PP [peripheral pulse] in the bilateral legs and trunk."  The Veteran displayed normal plantar flexion in the right ankle, and his right knee reflex and ankle reflex were both shown to be 2+ respectively.  Based on his evaluation of the Veteran, the examiner diagnosed him with chronic low back pain with radicular symptoms, and noted that the reduced left Achilles reflex was suggestive of an old radiculopathy.  Soon thereafter, the Veteran underwent an EMG of the lower legs, the impression of which was essentially normal.  The examining physician specifically noted there to be no definitive electrodiagnostic evidence of neuropathy or radiculopathy in the lower extremities.  

During the November 2008 treatment visit with his physical therapist, J.R., the Veteran reported to experience pain and numbness in the right lower extremity that travelled through the buttock, down towards the back and top of the right knee.  The Veteran's right ankle dorsiflexion and plantar flexion were both shown to be 4+/5 respectively.  J.R. noted that the Veteran was unable to rise up on his toes in the sitting position, and described the Veteran's score stability as "very poor throughout."  The Veteran's straight leg raising test produced positive results in both lower extremities, with the left being worse than the right as far as pain was concerned.  While the Veteran could discriminate with light touch the digits on his right foot, he exhibited a decreased sensation in the right lower extremity.  

The Veteran was afforded another VA examination in January 2009, at which time he reported a positive history of weakness, paresthesias, and numbness in his lower extremities.  Upon conducting a neurological evaluation of the Veteran's lower extremities, the examiner observed no evidence of motor loss in the right lower extremity, but did note signs of sensory loss in the medial calcaneal branches, the sural nerve, and splotchy areas of medial plantar nerve.  The right lower extremity reflexes revealed knee jerk of 2+ and ankle jerk of 1+.  

After filing his claim for SSA benefits, the Veteran was scheduled for an examination by a medical examiner at the SSA.  During the evaluation, the Veteran relayed his military history, and described worsening pain in his low back region which radiated down to both his tiptoes posteriorally with an associated "patchy numbness" in his right leg.  Upon conducting a physical and neurological evaluation of the Veteran, the SSA examiner observed no signs of edema, cyanosis, clubbing or ulceration in the extremities, and noted that the peripheral pulses were normal.  During the neurological evaluation, the SSA examiner observed no atrophy or rigidity, but noted that the Veteran exhibited twitching in all the muscles all over his body, including his head, neck, upper and lower extremities and even his back.  Sensation to light touch was completely lost on the Veteran's left leg with a patchy loss of touch to sensation on his right leg - mostly on his posterior thigh, lateral leg and dorsum of the right foot.  The Veteran deep tendon reflexes were described as symmetric and normal, and his strength was 5/5.  Based on his evaluation of the Veteran, the examiner, M.Y.K., M.D., diagnosed the Veteran with chronic lower back pain with bilateral radiculopathy.  

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for radiculopathy in the right lower extremity.  

Secondary service connection requires (1) competent evidence of a current disability; (2) a service-connected disability; and (3) competent evidence of a nexus between the service-connected disease or injury and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).  In this case, the evidence of record reflects a current diagnosis of radiculopathy in the right lower extremity and the Veteran has been service connected for his low back disability.  Therefore elements one and two of Wallin have been met.  The Board finds that the June 2009 SSA examination report, coupled with the October 2008, November 2008 and January 2009 examination reports, all of which reflect objective medical evidence of neurological pathology associated with the right lower extremity, provide a sufficient nexus relating the Veteran's radiculopathy in his right lower extremity to his service-connected low back.  

The Board acknowledges the October 2008 EMG report which was clear for any evidence of neurological abnormalities in the right lower extremity.  However, in light of the three examiner reports, which acknowledge the Veteran's complaints of pain and numbness in the right lower extremities, and further reveal objective medical findings of neurological abnormalities in the right lower extremity, as well as the June 2009 SSA opinion alluding to a connection between the Veteran's low back condition and the radiculopathy in the right lower extremity, the Board finds that the evidence is at least in equipoise that the Veteran has radiculopathy in the right lower extremity that is related to his service-connected low back disability.  

In a claim for VA benefits, "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  Gilbert, 1 Vet. App. at 54.  Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails."  Id.  

Furthermore, the Board concludes that a remand is not necessary here to obtain another medical opinion to decide the claim as the medical opinions of record are sufficient for that purpose.  38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose).  

Based on the totality of the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds sufficient evidence to warrant service connection for radiculopathy of the right lower extremity.  38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.  

V.  TDIU

Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012).  In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  

Total disability ratings 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 disability: provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. § 4.16(a) (2012).  

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment shall not be considered substantially gainful employment.  For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16(a).  

Total disability will be considered to exist 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.  See 38 C.F.R. § 4.15 (2012).  

The Veteran is service-connected for DDD of L4-S1, which as determined above, is evaluated as 60 percent disabling.  Service connection is also in effect for depressed mood due to general medical condition, rated as 30 percent disabling; radiculopathy of the lower extremity, rated as 30 percent disabling; and bowel dysfunction diagnosed as occasional fecal incontinence, erectile dysfunction; and bladder dysfunction diagnosed as occasional urinary  incontinence, all of which are rated as noncompensably disabling.  The current combined evaluation for the Veteran's service-connected disabilities is 80 percent.  See 38 C.F.R. § 4.25 (2012).  The Veteran meets the percentage requirements for a total disability evaluation under 38 C.F.R. § 4.16(a), based solely on the service-connected DDD at L4-S1, rated as 60 percent disabling.  In addition, the combined rating of the service-connected disabilities is 80 percent, which also meets the percentage requirements.  See 38 C.F.R. § 4.16.  

The remaining question, therefore, is whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.  In this regard, the Board notes that the Veteran's claim predominantly focuses on the impact his low back condition and health problems associated with his low back disorder - namely his radiculopathy in the left lower extremity, his depression, and his bowel and bladder dysfunction - have had on his employability.  See Statement of the Veteran, date stamped as received in November 2008.  
For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside the norm.  The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993).  

In a statement date stamped as received in November 2008, the Veteran provided the details surrounding his in-service injury and described how "[t]he constant deterioration of [his] physical status has resulted in a twelve year long spiral down into a gutter of physical incapacitation, financial devastation and depression."  According to the Veteran, his most recent job ended due to his inability to sit at a desk, and he has not been relegated to spend most of days either in a bed or reclined position and highly medicated on severe pain kills, anti spasmodic medication, and anti inflammatories.  

The Veteran's work history reflects that since his separation from service, he has worked at an assortment of jobs, and has made numerous attempts to find the right type of employment, either working as substitute teacher, in the food service industry, in an office-type setting, and/or as a sales representative.  The Veteran's most recent employment was working as a sales representative for a medical communication services company.  According to the Veteran, this position "was as sedentary as they come" as he was mainly required to sit at his desk and make sales calls or send emails to potential customers.  While the job required occasional travel to their offices, it required no lifting and very little movement about the office.  Regardless of these factors, the Veteran explained that in July 2008, he began experiencing further debilitating episodes of painful flare-ups of his low back condition, and by October 2008 he was unable to sit at a desk for more than 15 minutes without changing his posture to a supine position for hours at time.  According to the Veteran, his physician recommended that he start taking days off for bed rest during this month.  The Veteran asserts that by the 21st of this same month, he was fully incapacitated due to his low back disorder.  A review of the email correspondence between the Veteran and his former supervisor at the medical communications services company reflects that the Veteran's position was eliminated after he missed a significant amount of time at work so he could receive physical therapy treatment for his chronic back pain.  

As previously discussed above, the Veteran was afforded a VA examination in January 2009, at which time he reported that he was currently not working due to his low back disability.  According to the Veteran, he is unable to rest, and can barely take care of himself.  The Veteran also described feeling worthless and added that his wife helps take care of pretty much everything.  The examiner noted that the Veteran used a cane to help him ambulate.  Based on her discussion with, and physical evaluation of the Veteran, the examiner found it difficult to determine whether the Veteran was capable of obtaining gainful physical or sedentary employment as he (the Veteran) refused to perform any of the requested tasks.  However, with respect to his activities of daily living, the examiner did note that the Veteran's low back disorder and left leg radiculopathy had severe effect on his ability to feed and groom himself as well as his ability to drive, and completely prevented him from performing his chores, shopping, exercising, participating in sports or recreational activities, and bathing and dressing himself.  

From February 2009 to April 2009, the Veteran was seen at the Health-1st Wellness Center where he participated in a number of treatment sessions designed to help manage and alleviate his pain.  These sessions included chiropractic adjustments, decompression therapy, trans-electrical nerve stimulation, and therapeutic massage.  After working with the Veteran for two months, his therapist, K. S., opined that any work activities that included sitting or standing for longer than 30 minute periods would be contraindicated, and any lifting or carrying of objects should be prohibited.  

In September 2009, the Veteran presented at the VAMC for a consultation with an occupational therapist, and specifically to undergo a functional capacity evaluation to identify what his vocational capabilities were, and to evaluate his disability status as well as his employability.  The Veteran noted that he last worked as a cold call salesman for a medical call company, and that the medication he took to control his pain slowed down his cognition and made it so he was unable to work as fast as he used to in order to remain competitive at work.  According to the occupational therapist, W. H., the Veteran's functional limitations throughout the evaluation were increased pain in the lower back when sitting and standing.  It was noted that resting usually consisted of standing and/or leaning on a cane or walking a few feet to alleviate the tension in his lower back.  W. H. observed that the Veteran demonstrated difficulty sitting upright after being engaged in sitting activity for duration of 30 to 40 minutes, and that he needed to lean side to side and frequently extend and flex either leg under the table.  When comparing the Veteran's ability to conduct similar activities while either standing or in a supine position, it was noted that the Veteran did not have to stop said activity due to back pain while in a supine position, but did have to stop to rest and stretch when conducting the same activity while standing.  It was noted that long durations of rest were needed before he was capable of progressing to another activity.  W. H. observed that the Veteran was unable to reach for weighted objects from the ground to place on either a waist-high or shoulder-high shelf as a result of his limitations when it came to bending, stooping and crouching.  It was further noted that if the Veteran wished to transport objects from one location to another, a wheeled office chair was necessary.  

During his February 2010 personal hearing, the Veteran testified that he experiences constant pain when standing and walking, and he can only walk 300 feet before he has to stop, take a break, rest and sit down.  The Veteran further stated that he is unable to climb a staircase, and described symptoms of impaired sleep due to his low back pain, noting that he can only sleep about three concurrent hours a night.  See February 2010 Hearing Transcript, pp. 6-7.  

As previously noted above, the February 2010 SSA decision reflects that the Veteran was granted disability benefits based on his low back disorder and his psychiatric disorder.  

In a letter dated in July 2012, the Veteran's VA physician, K.P., M.D., determined that the Veteran's service-connected low back disorder, depressive disorder, bladder dysfunction, bowel dysfunction, and radiculopathy of the left lower extremity make it so he is unable to obtain and hold meaningful employment.  
In a letter dated in August 2012, the Veteran's rehabilitation counselor, D. M. noted that the Veteran participated in an extended evaluation plan in December 2010 which was designed to determine his vocational goal feasibility.  According to D.M., while the Veteran briefly participated in volunteer tutoring, this would not be classified as gainful employment in this program.  After reviewing the July 2012 letter from Dr. K.P., D.M. determined that due to the Veteran's service-connected disabilities, a vocational goal is infeasible.  

As previously noted above, the Veteran visited with Dr. A.L. in August 2012.  After evaluating the Veteran, and reviewing his medical records and diagnostic reports in their entirety, Dr. A.L. determined that the Veteran is unable to be substantially gainfully employed due to the effects of intervertebral disc syndrome of the lumbar spine.  Specifically, Dr. A.L. opined that the Veteran's inability to sit, walk or stand for prolonged periods of time due to pain, his need for rest after brief periods of sitting standing or walking, his limited range of motion in the lumbar spine and his cognitive deficits secondary to necessary opiods and muscle relaxers deem him unable to be substantially gainfully employed.  

In light of the above, the Board finds that the evidence of record indicates that the Veteran is unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities.  The Board acknowledges the January 2009 VA opinion, wherein the examiner was unable to reach a conclusion as to whether the Veteran could obtain gainful physical or sedentary employment.  However, the examiner's inability to arrive at a conclusion was based on the Veteran's refusal to perform the requested tasks, and it appears that these requested tasks were performed during the August 2012 treatment visit with Dr. A.L.  Moreover, the Board finds that the majority of evidence as reflected in the remainder of the Veteran's medical records, the functional capacity evaluations reports, and the three positive opinions, in conjunction with the Veteran's hearing testimony and statements submitted by the Veteran, his family members and friends indicates that the Veteran is unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities.  Of particular importance to the Board in this matter is the July 2012 VA opinion issued by Dr. K.P, the August 2012 opinion submitted by D.M., and the August 2012 medical opinion issued by Dr. A.L, all of which arrive at the same conclusion - that the Veteran's service-connected physical and mental disabilities essentially render him unable to secure or follow a substantially gainful occupation.  Thus, the Board concludes that a grant of TDIU is warranted under 38 C.F.R. § 4.16(a)(2012).  


ORDER

A 60 percent disability evaluation for DDD at L4-S1 is granted, subject to the provisions governing the award of monetary benefits.  

Service connection for radiculopathy of the right lower extremity is granted.  

A TDIU is granted, subject to the laws and regulations governing the award of monetary benefits.  

REMAND

By way of background, the Veteran was denied service connection for a disability manifested by severe muscular pain in the glutes, upper legs and internal legs in the April 2009 rating decision.  This denial of service connection for a disability manifested by severe muscular pain in the glutes, upper legs and internal legs was confirmed and continued in the October 2009 rating decision.  In a November 2009 Notice of Disagreement (NOD), the Veteran appealed all the issues listed in the October 2009 rating decision.  The NOD was submitted within one year of the of both the notices of the April 2009 and October 2009 rating decisions.  While the November 2010 statement of the case (SOC) addressed all the other issues discussed in the April 2009 and October 2009 rating decisions, the Veteran's claim seeking service connection for a disability manifested by severe muscular pain in the glutes, upper legs and internal legs was not addressed in the November 2010 SOC.  The record does not reflect that the Veteran withdrew this issue at any time prior to the issuance of the SOC.  Indeed, the claims file does not reflect that a SOC regarding this claim has yet been furnished to the Veteran. 

When an appellant files a timely NOD as to a particular issue and no SOC is furnished, the Board should remand, rather than refer, the claim for issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).  Here, an SOC concerning the issue of entitlement to service connection for a disability manifested by severe muscular pain in the glutes, upper legs, and internal legs should be issued.  However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal.  Smallwood v. Brown, 10 Vet. App. 93, 97 (1997) & Archbold v. Brown, 9 Vet. App. 124, 130 (1996).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

Furnish the Veteran an SOC regarding the claim for service connection for a disability manifested by severe muscular pain in the glutes, upper legs, and internal legs.  The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). Only if the Veteran perfects a timely appeal should these claims be certified to the Board.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs