Citation Nr: 1300690 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 05-37 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial higher evaluation for degenerative disc disease of the lumbar spine, status post discectomy, evaluated as 10 percent disabling from April 1, 2004, 20 percent disabling from May 3, 2006, and 40 percent disabling from November 20, 2010. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from October 1978 to October 1981 and from March 1985 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The case was subsequently transferred to the St. Petersburg, Florida RO. The initial rating claim on appeal, as well as two unrelated service connection claims, was denied by the Board in a November 2007 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and, in September 2009, the Veteran's then-representative and the VA General Counsel (herein "the parties") filed a joint motion for partial remand as to the initial rating claim. While this motion left the service connection denials undisturbed, the parties also indicated that consideration of a TDIU claim on appeal was warranted in light of the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009). This motion was granted by the Court in September 2009. The Board remanded this case for compliance with the joint motion in October 2010. By rating decision in July 2006, the agency of original jurisdiction (AOJ) increased the Veteran's disability rating for low back disability to 20 percent, effective May 3, 2006. Further, the RO again increased the disability rating to 40 percent, effective November 20, 2010, in a May 2012 rating decision. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issue therefore remains in appellate status and is characterized as shown on the first page of this decision. The Veteran testified at a Board video-conference hearing before another Veterans Law Judge (VLJ) in August 2007. However, in a September 2012 letter, the Veteran was informed that the VLJ who conducted the hearing was no longer employed with the Board and afforded the Veteran an opportunity to testify at another Board hearing. The letter specifically notified the Veteran that if she did not respond within 30 days, the Board would assume that she did not want another hearing. To date, the Veteran has not responded. Accordingly, the Board may proceed with the issuance of this decision. Additional medical evidence was added to the claims file after the most recent supplemental statement of the case issued in May 2012. However, as this evidence does not address the issues on appeal, it is not pertinent to the claim and thus, waiver of RO consideration of this evidence is not necessary. 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. Since the day after her retirement from service, the Veteran's service-connected degenerative disc disease of the lumbar spine, status post discectomy, has been manifested by severe pain and limitations equivalent to range of motion findings of 30 degrees flexion, but there is no ankylosis, incapacitating episodes of at least six weeks over the past 12 months, or neurologic abnormalities other than her already service-connected radiculopathy of the right lower extremity. 2. The Veteran's service-connected disabilities do not render her unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Effective April 1, 2004, the criteria for a disability evaluation of 40 percent, but no higher, for the Veteran's service-connected degenerative disc disease of the lumbar spine, status post discectomy, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Veteran's claim for a higher rating for low back disability arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA with respect to the Veteran's low back claim. Regarding the claim for TDIU, the Veteran was sent a letter in October 2010 that fully addressed all notice elements with respect to this issue as well as the issue of entitlement to an initial higher rating for the service-connected low back disability. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that this notice was not issued prior to the adverse determination on appeal. However, the claim was readjudicated in the May 2012 supplemental statement of the case. Accordingly, any timing deficiency has been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). In turn, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA treatment and VA examinations. A review of Virtual VA claims processing system includes additional VA treatment records, which were considered by the RO in a May 2012 supplemental statement of the case. Moreover, the Veteran's statements and Board hearing testimony in support of the claims are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Additionally, the Veteran was afforded VA examinations in November 2003, May 2006, and November 2010 to evaluate the severity of her service-connected low back disability. In February 2012, an addendum was provided addressing the issue of TDIU. The Board finds that the VA examinations with addendum are adequate because, as discussed below, they were based upon consideration of the Veteran's pertinent medical history, her lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that her symptoms have materially worsened since the most recent November 2010 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. The Board recognizes that in an October 2012 brief, the Veteran's representative argued that the November 2010 VA examination was insufficient because the examiner did not provide an opinion as to the additional limitation of back motion due functional factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). Nevertheless, the absence of these findings is not prejudicial to the Veteran. As discussed below, the Board is granting the maximum rating for limitation of back motion throughout the course of the appeal and a higher rating would require ankylosis. Functional factors are not for consideration where, as in this case, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Additionally, in August 2007, the Veteran was provided an opportunity to set forth her contentions during a hearing before a Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the August 2007, the Veterans Law Judge enumerated the issues on appeal. Also, information was solicited regarding the functional impact the Veteran's low back disability has on her daily life and employment. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussions did not reveal any evidence that might be available that had not been submitted. In this regard, the Veteran testified that all of her treatment is through VA. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Finally, the Board finds that there was substantial compliance with the October 2010 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the Board in October 2010 directed the AOJ to send the Veteran VCAA notice regarding the issues on appeal, including the VA's practices in assigning disability evaluations and effective dates in accordance with Dingess. As noted above, in October 2010, the AOJ sent such notice to the Veteran that fully complied with the Board's directive. The AOJ was also directed to obtain all VA treatment records dated from July 2006 to the present. The claims file and the Veteran's Virtual VA record includes VA treatment records from July 2006 to May 2012. Further, the AOJ was also directed to schedule the Veteran for a VA examination. As noted above, the Veteran was afforded a VA examination in November 2010 that is adequate for appellate review. Accordingly, the Board finds that there has been substantial compliance with the October 2010 Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). Analysis Degenerative Disc Disease of the Lumbar Spine The present appeal involves the Veteran's claim that the severity of her degenerative disc disease warrants a higher initial disability rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. The Veteran's degenerative disc disease of the lumbar spine is evaluated under Diagnostic Code 5243, which pertains to intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). Under the General Rating formula for Diseases and Injuries of the Spine, ratings are assigned as follows: 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; a 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent rating is assigned 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 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that 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. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). See Mitchell, supra. Prior to her retirement in April 2004, the Veteran was afforded a VA examination in November 2003. She reported daily sharp pain that ascended her back. She further described lower back pain and right posterior iliac spine pain with shooting pain down the posterior thigh to the right foot. The pain was rated as an eight on a scale of zero to 10 with standing, with getting up and down from a chair, and with lifting. She described numbness in her posterior right calf. She took over the counter pain medications to control her symptoms. On physical examination, the Veteran had a normal gait and posture. There was a surgical scar of the lumbar spine. Flexion was to 85 degrees, extension was to 20 degrees, and lateral bending was to 35 degrees. There was low back pain with straight leg raise. She had a normal heel-and-toe gait except for pain in the left heel. Muscle strength was 5/5 throughout. Reflexes were 2+ throughout and Babinski was negative. The diagnosis was multilevel lumbar degenerative disc disease, status post discectomy, with right hip radiculopathy. The Veteran was afforded another VA examination in May 2006. The claims file was reviewed. The Veteran reported severe weekly flare-ups that lasted for one day. She thought that she experienced 75 percent additional limitation of motion during flare-ups. Precipitating factors were overexertion, sitting, walking (especially uphill), bending, twisting, stress and fatigue. Alleviating factors were medication, rest and frequent position changes. The Veteran also reported daily paresthesias and unsteadiness, but denied any urinary or fecal incontinence. She had not missed any work because she was determined to not let this disability stop her any more than possible. She reported moderate fatigue, spasm, decreased motion and stiffness in the lumbosacral spine as well as right and left sacral ileitis. She also had mild weakness. She had severe daily aching pain over the lumbosacral spine into both S/I joints and radiation in the right leg. The Veteran did not use devices or aides. She was able to walk more than 1/4 of a mile, but less than one mile. There had been no incapacitating episodes. Postures, head position, symmetry in appearance and gait were all normal. There were no abnormal spinal contours or ankylosis of the spine. There was mild spasm and guarding and moderate pain with motion as well as tenderness. Range of motion testing was 49 degrees flexion with pain at 30 degrees; 22 degrees extension with pain at 15 degrees; 20 degrees left lateral flexion with pain at 15 degrees; 15 degrees right lateral flexion with pain at 10 degrees; and 30 degrees left and right lateral rotation with pain at 15 degrees. There was additional limitation on repetitive use in that flexion decreased to 44 degrees due to pain. Motor and sensory examinations of all of the extremities were normal. Reflex examination on the left was 2+ knee and 1+ ankle with normal plantar flexion. Reflex examination on the right was 2+ knee and absent ankle jerk with normal plantar flexion. Lasegue's sign was positive on both sides at 45 degrees. A contemporaneous x-rays of the spine showed degenerative changes and mild posterior subluxation of L3 on L4. The diagnosis was degenerative joint disease of the lumbosacral spine with L4-5 discectomy in November 1991. There were significant effects on general occupation due to decreased mobility, problems lifting and carrying, difficulty reaching, lack of stamina, decreased strength in lower extremity and pain. The pain also disrupted the Veteran's sleep. There was a mild effect on shopping and traveling, a moderate effect on chores, and a severe effect on exercise, sports and recreation. Otherwise, there was no effect on feeding, bathing, dressing, toileting or grooming. At this time, the Veteran worked full time in a clerical position, but was up and down with position changes and could not drive more than 15 minutes without stopping to change positions. VA treatment records showed continuing complaints and treatment for low back pain. A February 2008 MRI showed multilevel lumbar disc disease and right laminectomy changes at L4-5. At this time, the Veteran was also offered a back brace for her chronic back pain. Importantly, an April 2010 record showed mild tenderness and limited range of motion with pain on flexion, extension, lateral bending and twisting as well as muscle tightness. At that time, the Veteran reported that her pain radiated to both lower extremities. In statements of record and at the Board hearing, the Veteran reported pain after movement such as vacuuming. She could only do light chores and was unable to carry groceries. In sum, she could not do the slightest physical activities without experiencing pain. She also indicated she experienced continual pain, which she treated with Tylenols and Motrin. She used her TENS machine often. She also reported that she had trouble sleeping and woke up very stiff and in pain. At the Board hearing, she testified that her pain was at a five. She also reported pain down her right and left legs, worse on the right. She concluded that she was limited in all aspects of living because of her back problem. At the Board hearing, she also testified that she was currently unemployed, but had been going to school to train to be a dental assistant. She was finishing up her externship and looking for employment. She had previously been doing secretarial and administrative work. The Veteran was afforded another VA examination in November 2010. The claims file was reviewed. The Veteran again reported severe weekly flare-ups that lasted for one to two days. Increased activity was a precipitating factor and she could not rest during flare-ups. Again, there was no bowel or bladder incontinence. At this time, she also denied paresthesias and unsteadiness. The Veteran reported a history of fatigue, decreased motion, stiffness, weakness, spasm and pain. The pain was daily, moderate, achy, stabbing and radiating into the hips. The Veteran reported four to five incapacitating episodes over the past 12 months that lasted for one day. She did not use devices or aides, but was only able to walk 1/4 of a mile. On physical examination, posture, head position, symmetry in appearance and gait were all normal. There was no abnormal spinal curvature or ankylosis. While guarding and weakness were present, there was no spasm, atrophy, pain with motion or tenderness. Range of motion was 30 degrees flexion, 15 degrees extension, 25 degrees left and right lateral flexion, and 30 degrees left and right lateral rotation. There was objective evidence of pain on active range of motion. There were no additional limitations following repetitions, but again there was objective evidence of pain. Reflexes were 1+ knees and ankles. Sensory examination of the left leg was normal. On the right, there was decreased sensation to pain or pinprick as well as light touch. Motor examination was also normal. Lasegue's sign was negative. The examiner determined that there were no incapacitating episodes due to intervetebral disc syndrome. The Veteran was employed full time as a dental assistant. The diagnosis was degenerative joint disease of the lumbar spine. It was noted that she had been assigned different duties in her job. She experienced decreased mobility, problems with lifting and carrying and pain. Pain with decreased motion also affected her daily activities. The examiner determined that her spine condition would have a mild effect on her employability, but she should avoid lifting. The severity of the lumbar spine condition was considered mild. In a February 2012 addendum, it was again noted that the Veteran was currently working as a dental assistant full time for four years. The examiner observed that she had back pain and knee pain all the time. The Veteran could not lift or bend. Pain was the main factor limiting her work and activity. She could not do any activity without getting back pain. The examiner opined that the neck and back pains were limiting her ability to work comfortably and effectively. Initially, the Board notes that the July 2004 rating decision, which granted service connection for the Veteran's low back disability, also granted service connection and assigned a separate 10 percent disability evaluation for radiculopathy of the right lower extremity effective, April 1, 2004, as well as granted service connection and assigned a noncompensable rating for surgical scar of the lumbar spine, effective April 1, 2004. The Veteran did not initiate an appeal with respect to these ratings, and hence, they are not currently before the Board. After reviewing the totality of the evidence, the Board finds that a reasonable doubt exists as to whether a 40 percent rating is warranted for the Veteran's service-connected low back disability from the day after her retirement, April 1, 2004. Although the examination report prior to retirement found that flexion was to 85 degrees, the examiner failed to address whether there was any additional limitation during flare-ups or following repetition. The examiner also did not indicate at what degree pain began. As such, this examination is not adequate for rating purposes. Nevertheless, importantly, the next VA examination done in May 2006 clearly found that pain was elicited at 30 degrees flexion and limitation to this degree meets the criteria for a 40 percent rating. Moreover, at that time, the Veteran reported that she experienced 75 percent additional limitation during flare-ups. Follow up treatment records continued to document limited range of motion and the November 2010 VA examination clearly found flexion limited to 30 degrees. Importantly, the Veteran's statements and hearing testimony concerning her severely painful motion and her inability to do physical activities have been consistent throughout the appeal period. In sum, when looking at the totality of the evidence of record, and when considering Deluca, together with 38 C.F.R. § 4.7 and the doctrine of reasonable doubt, a 40 percent disability rating more accurately reflects the level of disability from the date after her retirement. Thus, in light of Deluca and resolving all benefit of the doubt in the Veteran's favor, the Board finds that a 40 percent rating is warranted for the Veteran's service-connected degenerative disc disease of the lumbar spine, status post discectomy from the day after her retirement, April 1, 2004. However, a rating in excess of 40 percent is not warranted at any time during the appeal period. Since the Veteran has been granted the maximum rating possible under limitation of motion for the lumbar spine, a further analysis under DeLuca, supra, would not result in a higher schedular rating. Johnston v. Brown. The evidence does not include any reports of ankylosis of the lumbar spine. 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).) The most recent VA examinations clearly found no evidence of ankylosis. On all examinations, there has been significant remaining motion and the Veteran has not reported any periods when her spine was fixed in position. Hence, a higher rating is not warranted under the general rating formula for back disabilities. A higher rating is also not warranted under the criteria for invertebral disc syndrome as there has been no evidence of incapacitating episodes totaling at least six weeks during a 12 month period. The May 2006 and November 2010 VA examinations clearly indicated that there had been no incapacitating episodes in the last 12 months. The record does not otherwise report any periods of physician prescribed bed rest. Even considering the Veteran's report of having five or six incapacitating episodes lasting for one day at the November 2010 examination, this self-report still does not show that she experienced incapacitating episodes of six weeks duration over the past year. Moreover, the Veteran has not specifically identified any treatment records that show incapacitation requiring physician prescribed bed rest for this duration of time. With respect to neurologic abnormalities pursuant to Note (1) of the general rating formula for disease and injuries of the spine, with the exception of right leg radiculopathy that has been rated separately, there has been no objective finding of neurological abnormalities associated with the Veteran's low back disability to warrant a separate compensable rating. Even though the Veteran has reported radiating pain to the left lower extremity and there has been some indication of decreased reflexes, motor and sensory examination of left lower extremity has always been normal. While the Veteran has clearly been diagnosed with radiculopathy of the right lower extremity, the VA examiners have not diagnosed radiculopathy of the left lower extremity. Further, the Veteran has expressly denied bowel or bladder incontinence. Thus, an additional separate compensable rating is not warranted for any other neurological symptoms and the Veteran's current symptoms are adequately contemplated under the assigned 40 percent disability rating. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of her low back disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Moreover, the Board has contemplated the Veteran's statements concerning her symptoms when assigning the current 40 percent rating back to the date after her retirement from service. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected low back disability; however, the Board finds that her symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected low back disability with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran's 40 percent rating contemplates her functional limitations caused by her low back disability. There are no additional symptoms of her low back disability that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of her service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In conclusion, after reviewing the overall record, the Board finds that a 40 percent rating, but no higher, is warranted for the Veteran's service-connected degenerative disc disease of the lumbar spine, status post discectomy, effective April 1, 2004, the date after the Veteran's retirement from service. However, a preponderance of the evidence is against a rating in excess of 40 percent, and the benefit-of-the-doubt doctrine does not otherwise apply. See 38 U.S.C.A. § 5107(b). TDIU The Veteran is also seeking entitlement to TDIU. In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). 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 to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there is only one such disability, such is ratable at 60 percent or more and, if are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran is service-connected for degenerative disc disease of the lumbar spine, status post discectomy, currently evaluated as 40 percent disabling; pes planus of the left foot with plantar fasciitis and heel spur syndrome, currently evaluated as 10 percent disabling; radiculopathy of the right lower extremity, currently evaluated as 10 percent disabling; arthroscopic repair medical meniscus tear right knee, currently evaluated as 10 percent disabling; pes planus of the right foot, currently evaluated as noncompensable; microscopic-hyperchromic anemia secondary to thalassemia minor, currently evaluated as noncompensable; and surgical scar of the lumbar spine, currently evaluated as noncompensable. Her total combined rating is 60 percent. See 38 C.F.R. § 4.25. As her back disability with resulting scar and radiculopathy are a common etiology and the remainder of her disabilities, other than anemia, affect a single body system, i.e., are orthopedic in nature, they may be considered one disability under 38 C.F.R. § 4.16(a). As such, when combining the Veteran's disabilities other than anemia, she has a 60 percent rating. As such, the Veteran is found to have one disability rated at 60 percent or more. The Board notes that the Veteran is rated noncompensable for the service-connected anemia. This is not a bar to meeting the schedular criteria. In this regard, the Court upheld a finding that a Veteran with three service-connected disabilities, resulting from a single accident and yielding a combined rating of 60 percent, to meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) despite other unrelated service connected disabilities evaluated as noncompensable. Gary v. Brown, 7 Vet. App. at 230 (1994). Accordingly, the Veteran's service-connected other service-connected disabilities satisfies the schedular criteria for a TDIU, notwithstanding the noncompensable evaluation for anemia. Id. 38 C.F.R. § 4.16(a). To find otherwise would lead to the absurd result that a Veteran with more than one service-connected disability is penalized in that he or she is required to have a combined disability rating of 70 percent while a Veteran with a single service-connected disability need only have a 60 percent rating. See Sabonis v. Brown, 6 Vet. App. Vet.App. 426, 429 (1994) (stating that plain meaning of language of a statute must be given effect unless it would lead to absurd result). Therefore, the remaining inquiry is whether such disabilities render the Veteran unable to secure or follow a substantially gainful occupation. Factors such as employment history, as well as educational and vocational attainments, are for consideration. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. In the instant case, although there is evidence that her service-connected disabilities have significant effects on her occupation, the evidence of record clearly shows that the Veteran is currently employed full time as a dental assistant. A July 2006 VA treatment record showed that the Veteran worked eight hours a day in an office and was able to do her job except for backache. A May 2008 VA examination performed for the purposes of addressing the Veteran's service-connected right foot and right knee disabilities also noted that she was employed full time as a dental assistant. Follow-up VA examinations and opinions done in November 2010, February 2012 and May 2012 also all document that the Veteran is employed full time as a dental assistant. The only time where there was any indication that the Veteran was not working full time was at the Board hearing. However, she also testified that she had just finished her training to be a dental assistant and was looking for a full time job. In other words, there was no indication that she was unemployed at that time due to her service-connected disabilities. Rather, she was in the process of finding a job consistent with her recent training. Accordingly, as the Veteran is currently employed full time, the evidence simply does not show that she is unable to secure and follow a substantially gainful occupation. Although there was an indication at the Board hearing that the Veteran was not employed, it appears that she was going to school and training to be a dental assistant at that time. Moreover, given the fact that she was subsequently able to find employment, and maintain this employment, the Board finds that the Veteran was employable throughout the course of the appeal. In sum, as she is currently gainfully employed full-time and has been for at least four years, she clearly is able to follow a substantially gainful occupation. In conclusion, the preponderance of the evidence is against entitlement to a TDIU. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C.A. § 5107(b). ORDER Effective April 1, 2004, an initial 40 percent disability rating, but no higher, for degenerative disc disease of the lumbar spine, status post discectomy, is granted, subject to the laws and regulations governing payment of monetary benefits. A TDIU is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs