Citation Nr: 1305191 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 99-17 990A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 40 percent for a low back disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran retired from active military service in August 1992 after serving on active duty for more than 20 years. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, in June 1999 and January 2000. The Veteran currently resides in Florida. The procedural history leading up to the issuance of the June 1999 and January 2000 rating decisions, as well as the procedural history following their issuance, is complex but requires discussion. Service connection for a low back disability was initially granted in a September 1993 rating decision. A 10 percent rating was assigned effective September 1, 1992, the date following the Veteran's discharge from active duty. The Veteran appealed that decision. The Board initially remanded the claim in June 1996 but eventually granted a 40 percent evaluation in a December 1997 decision. The 40 percent rating was effectuated in a December 1997 rating decision with an effective date of September 1, 1992. On both occasions when the Board had jurisdiction of the claim for an initial rating in excess of 10 percent, it referred the issue of entitlement to a total rating. See June 1996 remand and December 1997 decision. No action was taken, however, until the Veteran submitted a statement in April 1999 requesting that the issue referred by the Board be acted upon. He also submitted a formal claim for entitlement to a TDIU at that time. The claim for entitlement to a TDIU was denied in the June 1999 rating decision that is the subject of the current appeal. The Veteran filed a timely substantive appeal, at which time he also raised the issue of entitlement to a rating in excess of 40 percent for his low back disability. See VA Form 9 received September 1999. The claim for increased rating was adjudicated in the January 2000 rating decision that is the subject of the current appeal, which continued the 40 percent rating assigned. The Veteran also filed a substantive appeal as to that issue. Both claims were remanded by the Board in August 2001 and again in March 2005. The Board subsequently denied both claims in November 2006, a decision the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2008, the Court granted a Joint Motion for a Remand to the Board (Joint Motion), vacated the Board's November 2006 decision, and remanded the case to the Board for action consistent with the Joint Motion. The claims were thereafter remanded by the Board in December 2008, August 2010 and August 2011. They have now been returned for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The issue of entitlement to a TDIU is addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT The Veteran's service-connected low back disability is manifested by subjective complaints of chronic pain, flare-ups, and radiating pain, but there is no evidence of unfavorable ankylosis of any part of the spine, pronounced intervertebral disc syndrome (IDS) with persistent symptoms compatible with sciatic neuropathy, incapacitating episodes requiring physician-ordered bed rest and treatment, or any associated neurological abnormalities. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for the service-connected low back disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5284-5295 (effective before September 26, 2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (effective as of September 26, 2003). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim was initially adjudicated before the enactment of the VCAA. He was not provided the notice required under the VCAA until January 2009. Although this letter was sent long after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). VA has obtained service treatment records; assisted the appellant in obtaining evidence, to include private and VA treatment records, as well as records from the SSA; afforded the appellant physical examinations; and obtained medical opinions as to the severity of his disability. There has been substantial compliance with the Court's May 2008 Order and the Board's December 2008, August 2010 and August 2011 remands as VA examinations have assessed the current severity of the Veteran's low back disability and addressed the relevant factors. All known and available records relevant to the decided herein have been obtained, and the appellant has not contended otherwise. In sum, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Increased rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify various disabilities. 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 more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As noted in the Introduction, service connection for a low back disability was initially granted in a September 1993 rating decision. The RO assigned a 10 percent rating for degenerative joint disease of the lumbar spine pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5295. An effective date of September 1, 1992, the date following the Veteran's discharge from active duty, was assigned. The rating was subsequently increased to 40 percent in a December 1997 rating decision, which effectuated a December 1997 decision of the Board. The disability was recharacterized as arthritic changes of the lumbar spine, but the same diagnostic codes and effective date were assigned. The Veteran's claim for an increased rating was received in September 1999. See August 1999 VA Form 9. In essence, he asserted that he should have been rated as 60 percent disabled in accordance with Diagnostic Code 5293 for IDS. Since that time, the Veteran has submitted a voluminous amount of lay evidence in support of his claim. The Board notes that it has read each statement submitted by the Veteran thoroughly, but that only the points most salient to his low back disability will be discussed in the following paragraphs, since many of his contentions related mostly to his claim for a total rating based on unemployability. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). In May 2003, the Veteran reported that he has days where he can perform most activities cautiously, but somewhat normally, but that pain severely limits his ability to perform any physical activity whatsoever a great deal of the time and that his degenerative disc disease is severe and disabling. See statement in support of claim (emphasis in original). In April 2005, he reported that he has extreme pain and immobility routinely associated with his condition. The Veteran indicated that although he may honestly be able to get around fairly well for several weeks (equaling about one third of the time) at a time (without pain or limitation), the other two thirds of the time are spent with an aching spine and an inability to dress or do any other routine activities, resulting in him having to stay on his bedroom floor taking a variety of over the counter medications. In February 2006, the Veteran indicated that he is unable to use the toilet, much less get dressed and travel, during flare-ups; that flare-ups are followed by an extended period of time during which he will slowly attempt to do more as the pain slowly subsides, but that he may be confined to laying on the floor for five to 20 days and may not be able to dress himself, shower or go to the bathroom normally for weeks; and that he had some physical therapy and treatment with moist heat and was given a list of exercises to complete at home and told to take hot baths for pain relief, but could not afford to go to physical therapy and that he was avoiding any activity that may precipitate a flare-up. Also pertinent, the Veteran reported that he was ordered to bed rest on numerous occasions while still in service but that as his condition has deteriorated, it is impossible for him to visit any physician, or to even get dressed, until his flare-up subsides substantially. The Veteran asserted that, at that point, the bed rest has already occurred. He also indicated that bed rest is used in the military to excuse soldiers from work and that there was no reason now for any physician to ever prescribe bed rest. See statement in support of claim; see also statements in support of claim dated in July 2008 and January 2009. In January 2009, the Veteran reported that he is confined to his bed approximately 40 percent of the time, during which he is unable to sit up, shower, dress or visit the bathroom. He indicated that Morphine and other drugs seem to help with pain, but not mobility. Another 30 percent of the time he mostly remains in bed but can take baths, put on bathing trunks, and go to the bathroom. If alone, he can also answer the door and get a drink. During these times he reports listing to the left and that walking is painful. The remaining 30 percent of the time he showers, puts on shorts, walks around the house, rides in a car, eats out with family, and appears fairly normal. During these times, although he is unable to bend over to pick up his grandson, or do a great deal, he is able to most daily activities. See statement in support of claim; see also statement submitted to the Social Security Administration (SSA) (in which the percentages were changed to 40, 40 and 20). In September 2010, the Veteran reported that during periods of severe, disabling pain, which come with no notice whatsoever, it is totally impossible for him to even stand up. He indicated that there was no way for him to go to a doctor and request bed rest to then return home and lay on the floor; furthermore, there is no need and using an ambulance would not make sense. See statement to Senator B.N. Lastly, the Veteran has also reported numerous medications taken to control his back pain, to include Valium, Oxycodone, Morphine, Methocarbamol and Piroxicam. See e.g., statements in support of claim dated in July 2008 and January 2009. While this claim was pending, the criteria for evaluating spinal disabilities were amended, effective September 23, 2002, and September 26, 2003. See 67 Fed. Reg. 54, 345-54, 349 (2002) and 68 Fed. Reg. 51, 454-51, 458 (2003), respectively. The amendment effective September 23, 2002, concerned revisions to old Diagnostic Code 5293, which provided the criteria for rating IDS. The current version of the revised criteria, which evaluate various types of spine disabilities, is found in 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Both the old and new criteria apply, but the substantive new criteria cannot be applied before their effective date of September 26, 2003. In light of these amendments, the Board will evaluate whether the Veteran is entitled to a rating in excess of 40 percent in accordance with the effective dates of the rating criteria, before and as of September 26, 2003. Prior to that discussion, however, it is important to note several things. First, as noted above, the Veteran's low back disability is currently evaluated under diagnostic codes 5010 and 5295. Old Diagnostic Code 5295 in effect prior to September 26, 2003, provided a maximum rating of 40 percent for lumbosacral strain. As such, an increased rating (in excess of 40 percent) is not possible under this old diagnostic code. Diagnostic Code 5010, which has undergone no amendment during the appellate period, provides that arthritis due to trauma is to be rated as degenerative arthritis. Diagnostic Code 5003, which also has not been amended during the appellate period, provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. Under 38 C.F.R. § 4.59, painful motion is an important factor of disability from arthritis and actually painful joints are entitled to at least the minimum compensable rating for the joint. The rating criteria provided for limitation of motion of the dorsal and lumbar spine segments were found at 38 C.F.R. § 4.71a, Diagnostic Codes 5291 and 5292, respectively, prior to September 26, 2003. A maximum rating of 40 percent was provided for severe limitation of the lumbar spine. As such, an increased rating (in excess of 40 percent) is also impossible under old Diagnostic Codes 5292 in conjunction with Diagnostic Code 5010, and the Board will not provide any further discussion of these criteria. Given the foregoing, the Board will only consider the old diagnostic criteria in effect prior to September 26, 2003, that provided ratings in excess of 40 percent, namely Diagnostic Codes 5285, 5286, 5289 and 5293, to be discussed in greater detail below. The current rating criteria provided for limitation of motion of the spine are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, and will also be discussed in greater detail below. A. Increased rating based on criteria in effect before September 26, 2003 Prior to September 23, 2002, Diagnostic Code 5293 provided rating criteria for both orthopedic and neurological manifestations of IDS. Under this diagnostic code, a 60 percent evaluation was assigned for pronounced IDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain on motion and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, little intermittent relief. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). From September 2002 until a subsequent amendment in September 2003, Diagnostic Code 5293 provided a 60 percent rating for IDS with incapacitating episodes having a total duration of a minimum six weeks during the past one year. See 38 C.F.R. § 4.71a (2003) and 67 Fed. Reg. at 54, 349 (2002). The term "incapacitating episode" contemplates acute signs and symptoms due to IDS that require bed rest and treatment ordered by a physician. See Note (1), 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Pursuant to the September 2002 amendments, orthopedic and neurological manifestations were to be evaluated separately using the criteria for the most appropriate orthopedic and neurologic diagnostic code(s). See Note (2), 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Other old criteria in effect prior to the September 2002 and September 2003 amendments also permitted schedular ratings higher than 40 percent. Diagnostic Codes 5285 and 5286 provided 60 and 100 percent ratings for fracture of the vertebra (depending on severity) and complete bony fixation (ankylosis) of the spine (depending on severity and whether ankylosis is favorable or unfavorable), respectively, and Diagnostic Code 5289 permitted a 50 percent rating for unfavorable 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). Diagnostic Code 5285 is not applicable to the current situation because there is no evidence that the Veteran had a fractured vertebra. See VA examination reports; VA treatment records and imaging reports; private treatment records and imaging reports. Diagnostic Codes 5286 and 5289 are also not applicable to the current situation because there is no evidence of ankylosis of any portion of the spine. The Board acknowledges the Veteran's reported immobility as a result of his low back disability. This reported immobility, however, is in the form of being confined to his bed, not complete fixation/consolidation of any portion of his spine due to his disease. In other words, the Veteran has never asserted that his spine is completely fixed or that he is unable to flex, extend or rotate his spine. See statements in support of claim; see also VA examination reports; VA treatment records and imaging reports; private treatment records and imaging reports. That leaves only old Diagnostic Code 5293 for consideration. In short, these diagnostic criteria stipulate that symptoms compatible with sciatic neuropathy must be manifest in conjunction with pain on motion and either muscle spasm, absent ankle jerk or other neurological findings with little intermittent relief. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); see also Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The evidence of record does not reveal that the Veteran's low back disability was manifested by persistent symptoms compatible with sciatic neuropathy with characteristic pain on motion and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, little intermittent relief, so as to support a rating higher than 40 percent for combined orthopedic and neurological manifestations under old Diagnostic Code 5293 in effect prior to September 23, 2002. During a December 2001 VA examination, although the examiner noted absent deep tendon reflexes at both ankles (and knees) and the Veteran reported left leg pain causing difficulty with laying in bed and sleep, the Veteran was able to perform heel, toe and tandem walking and there were no findings regarding symptoms compatible with sciatic neuropathy or related to pain on motion. During a September 2005 VA examination, while pain was noted during range of motion testing, there were no findings regarding symptoms compatible with sciatic neuropathy, or any neurological findings for that matter. In addition, deep tendon reflexes were no longer absent at either ankle (though the right Achilles was 1+ with down going plantar reflexes); the Veteran was able to walk on his heels and tiptoes; light touch and pin sensation were intact throughout; motor strength was 5/5 in all muscle groups, bilaterally, with normal tone and bulk; and there was no indication the Veteran exhibited any muscle spasm. A June 2007 VA treatment record reveals that the Veteran was seen with complaint of worsening chronic low back pain. He denied any radiation of back pain, numbness or tingling, and bowel/urinary incontinence. Neurological examination revealed no motor or sensory loss, and no Babinski. See Orlando history and physical. A February 2008 VA treatment record indicates the Veteran was seen with complaint of chronic low back pain, but denied radiation of pain. On examination, limited flexion was noted but there was no pain with motion noted and straight leg raise was reportedly negative. See Orlando ambulatory care note. There was objective evidence of pain on active range of motion during a June 2009 VA examination, but the Veteran denied radiation of pain and there were no findings of symptoms compatible with sciatic neuropathy or any other abnormal neurological findings. Moreover, there was no objective evidence of spasm at the thoracic sacrospinalis, a detailed motor examination revealed active movement against resistance, and detailed sensory and reflex examinations were normal. There was also objective evidence of pain on active range of motion and objective evidence of pain with motion of the thoracolumbar sacrospinalis during a September 2010 VA examination; the Veteran reported unsteadiness (often has to hold on to walls or others when walking to maintain balance), leg weakness (both legs will often feel like they will not support him), and a dull, radiating pain from the back into the entirety of both legs; and he indicated that although he has the ability to sense when he needs to urinate or defecate and could control his urination/defecation, he was unable to get to the toilet at times. However, there were no objective evidence of spasm at the thoracic sacrospinalis and no findings of symptoms compatible with sciatic neuropathy. Rather, sensory examination of the bilateral peripheral nerves revealed no dysesthesias and normal vibration, position sense, pain or pinprick, and light touch. In addition, although bilateral ankle jerks were hypoactive (1+), they were not absent. Lastly, a detailed motor examination revealed active movement against some resistance and the examiner reported that weakness of all lower extremity muscle groups was attributed to the Veteran breaking/ratcheting contractions due to lower back pain in the seated position. The examiner also indicated that weakness of the right extensor hallucis longus (EHL) was also attributed to a severe hallux valgus deformity. A January 2010 VA treatment record reveals that the Veteran was seen with a complaint of lumbar pain, at which time physical examination revealed muscle spasm and an inability to flex past 90 degrees due to pain. There were no findings of symptoms compatible with sciatic neuropathy, or any other abnormal neurological findings. The motor and sensory examinations were negative, and deep tendon reflexes were 2+ throughout and bilaterally. See ambulatory care note. A June 2011 primary care nursing note reports severe back pain at times with assistance required at times due to pain, and the Veteran's denial of any urinary incontinence within the last 24 months. Once again, there was objective evidence of pain on active range of motion during a September 2011 VA examination. In addition, the Veteran reported radiation of pain to both legs (thighs and calves). However, there again were no findings of symptoms compatible with sciatic neuropathy or any other neurological findings. Rather, sensory examination of the lower extremities revealed no dysesthesias and normal vibration, position sense, pain or pinprick, and light touch. In addition, although ankle jerks were hypoactive (1+), they were not absent. Lastly, a detailed motor examination revealed active movement against full resistance for bilateral knee extension and active movement against some resistance for bilateral hip flexion and extension, bilateral ankle dorsiflexion and plantar flexion, bilateral knee flexion, and bilateral great toe extension. There was no objective evidence of spasm at the thoracic sacrospinalis. These findings do not support a rating higher than 40 percent for combined orthopedic and neurological manifestations under old Diagnostic Code 5293 (in effect prior to September 23, 2002) at any time during the appellate period. There is also no appropriate basis to assign a rating in excess of 40 percent for incapacitating under the criteria in effect between September 23, 2002 and September 26, 2003. This is so because there is no evidence that the Veteran had any incapacitating episodes requiring bed rest prescribed by a physician having a total duration of a minimum six weeks during the past one year. The Board acknowledges that during the December 2001 VA examination, the Veteran reported that lower back pain was severe enough about three to four times a year that he was unable to get out of bed. There is no evidence, however, that he was prescribed bed rest by a physician. In fact, the Veteran denied receiving any treatment directed at his back at the time of that examination. The Board also finds that a separate rating for neurological impairment of the lower extremities is not warranted during this period. As discussed in detail above, the Veteran has reported experiencing bilateral radiculopathy but the objective neurological examinations have failed to demonstrate the presence of any such impairment. In the Board's opinion, the medical evidence prepared by skilled health care providers is more probative than the Veteran's self-serving statements concerning the existence of such impairment. B. Increased rating based on criteria in effect as of September 26, 2003 Effective from September 26, 2003, disabilities of the lumbar spine (other than IDS when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51, 454 (Aug. 27, 2003), now codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. at 51,455 (Supplementary Information). Under Diagnostic Codes 5235-5242, ratings in excess of 40 percent are allowed for unfavorable ankylosis of the entire thoracolumbar spine (50 percent) and for unfavorable ankylosis of the entire spine (100 percent). Any associated objective neurological abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a (2012), Note (1). 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. 38 C.F.R. § 4.71a (2012), Note (5). Under the new criteria, IDS is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IDS Based on Incapacitating Episodes, which is the same formula as found in 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). The definition of an incapacitating episode remains the same as it was prior to the September 26, 2003 amendments. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003), Note (1). The evidence of record for the period beginning September 26, 2003, does not support a rating in excess of 40 percent for the Veteran's service-connected low back disability under Diagnostic Codes 5235-5242. There is no evidence of record that the Veteran's spine, to include the thoracolumbar spine, has ankylosis of any kind. While the Board again acknowledges the Veteran's reported immobility as a result of his low back disability, it again points out that the Veteran has never asserted that his spine is completely fixed or that he is unable to flex, extend or rotate his spine. In addition, he has he never reported that his lumbar spine is fixed at zero degrees (neutral position). See statements in support of claim; see also VA examination reports; VA treatment records and imaging reports; private treatment records and imaging reports. The evidence also remains devoid of any references to incapacitating episodes requiring bed rest prescribed by a physician having a total duration of a minimum six weeks during the past one year. See VA and private treatment records; VA examination reports dated September 2005, June 2009, September 2010 and September 2011. In fact, the evidence contains no reference to bed rest and treatment prescribed by a physician. The Board acknowledges the Veteran's assertion that VA fails to give adequate consideration to bed rest not ordered by physicians, which he contends is very inappropriate and unfair, and that he does not foresee being ordered to bed rest because he is now totally disabled. See statements in support of claim dated in July 2008 and January 2009. In a September 2010 letter to his Senator, the Veteran indicated that one point of contention is that VA only recognizes bed rest prescribed by a physician as being actual bed rest, which would be understandable in the case of those on active duty or employed, but not in his case because he is neither on active duty nor employed. While the Board acknowledges these contentions, the Board is bound by the law, which stipulates that an "incapacitating episode" requires bed rest and treatment ordered by a physician. See Note (1), 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); Note (1) 38 C.F.R. § 4.71a (2012). In addition, the Veteran has conceded that he has not sought treatment during his flare-ups and the Board does not find the Veteran's assertion that he had been advised by his physician to treat his incapacitating episodes of lower back pain with bed rest or laying on the floor to be credible. See September 2010 VA examination report. This is so because the Veteran has reported only receiving VA treatment related to his back, and VA records do not corroborate that his treating physician has prescribed any bed rest. See statements in support of claim; private and VA treatment records. The Board has also considered whether the Veteran manifests any associated objective neurological abnormalities so as to warrant a separate rating under an appropriate diagnostic code. As noted in more detail above, the record reveals complaint of radiating pain and some unsteadiness and weakness of the lower extremities. See e.g., VA examination reports dated December 2001, September 2010 and September 2011. The Board also acknowledges that deep tendon reflexes were reportedly absent in the ankles and knees at the time of the December 2001 VA examination. Neurological testing on subsequent VA examinations, however, revealed some deep tendon reflexes. See September 2005 VA examination report (2+ throughout except 1+ right Achilles, with bilateral down going plantar reflexes); June 2009 VA examination report (normal detailed reflex examination); January 2010 ambulatory care note (2+ throughout and bilaterally); September 2010 VA examination report (2+ (normal) bilateral knee jerk; 1+ (hypoactive) bilateral ankle jerk; normal bilateral plantar flexion); and September 2011 VA examination report (1+ (hypoactive) bilateral knee and ankle jerk; normal bilateral plantar flexion). Moreover, motor strength was 5/5 in all muscle groups, bilaterally, with normal tone and bulk, during the September 2005 VA examination; detailed motor examination revealed active movement against resistance, and detailed sensory and reflex examinations were normal during the June 2009 VA examination; sensory examination of the peripheral nerves revealed no dysesthesias and normal vibration, position sense, pain or pinprick, and light touch, and a detailed motor examination revealed active movement against some resistance during the September 2010 and September 2011 VA examinations; and examination of the motor and sensory functioning at the time of a January 2010 ambulatory care note was normal. In light of these findings, a separate rating is not warranted for on the basis of neurological impairment of the lower extremities. Consideration has also been given to any functional impairment and any effects of pain on functional abilities. Old Diagnostic Code 5292 provided a 40 percent rating for severe limitation of motion of the lumbar spine. Under the current rating criteria, normal forward flexion of the thoracolumbar spine is zero to 90 degrees and forward flexion of the thoracolumbar spine to 30 degrees or less merits the assignment of a 40 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243; see also Note (2) 38 C.F.R. § 4.71a; 38 C.F.R. § 4.71a, Plate V (2012). During the September 2005 VA examination, range of motion testing revealed flexion to 30 degrees and right lateral flexion to 10 degrees, both with increase in low back pain. There was no increase in low back pain with extension to 15 degrees, left lateral flexion to 15 degrees, or bilateral rotation to 30 degrees. Repeated forward and lateral flexion did not cause increased pain or loss of strength, sensation or coordination. During the June 2009 VA examination, range of motion testing revealed flexion to 50 degrees and 5 degrees of extension, bilateral lateral flexion, and bilateral lateral rotation, all with objective evidence of pain. There was objective evidence of pain following repetitive motion but no additional limitations after three repetitions of range of motion. During the September 2010 VA examination, range of motion testing revealed flexion to 60 degrees, zero degrees of extension, and 20 degrees of bilateral lateral flexion and bilateral lateral rotation, all with objective evidence of pain. There was objective evidence of pain following repetitive motion but no additional limitations after three repetitions of range of motion. During the September 2011 VA examination, range of motion testing revealed flexion to 20 degrees, 5 degrees of extension, and 10 degrees of bilateral lateral flexion and bilateral lateral rotation, all with objective evidence of pain. There was objective evidence of pain following repetitive motion but no additional limitations after three repetitions of range of motion. The Board recognizes the objective evidence of limitation of motion and increased pain consistently exhibited by the Veteran on range of motion testing. It acknowledges the reported affects the Veteran's low back disability had on his jobs prior to retirement and on his activities of daily living, to include the Veteran's consistent reports of flare-ups that leave him in a supine position approximately 40 percent of the time. The subjective complaints raised by the Veteran, in particular as they relate to flare-ups, are not deemed credible by the Board. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Irrespective of the foregoing credibility determination, even if range of motion was limited by pain beyond that shown during examination, the fact remains that the Veteran retains some useful motion of his lumbar spine. Therefore, his limitation of motion is contemplated by the assigned rating of 40 percent. Other Considerations Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board also has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the demonstrated manifestations of the disability are contemplated by the schedular criteria. Therefore, the Board has determined that referral of the claim for extra-schedular consideration is not in order. Finally, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER A rating in excess of 40 percent for a low back disability is denied. REMAND The Veteran is service-connected for right ear hearing loss and a low back disability. His hearing loss is noncompensable and his low back disability is rated as 40 percent disabling. Therefore, the schedular requirements for the assignment of a TDIU pursuant to 38 C.F.R. § 4.16(a)(2) are not met since the Veteran's combined rating has only been 40 percent since September 1, 1992, and he does not have a single disability rated as 60 percent disabling. However, the Board must consider the provisions of 38 C.F.R. § 4.16(b), which provide for referral of cases for extra-schedular consideration if a Veteran is unemployable by reason of service-connected disability, but does not meet the schedular requirements for consideration under 38 C.F.R. § 4.16(a) (2012). For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extra-schedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with equal rating of disability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board does not currently have jurisdiction to authorize an extra-schedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating). It may, however, determine that a particular case warrants referral to the Director of Compensation and Pension (C&P) for extra-schedular consideration under 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16 (b). This case does. The Board notes that the AMC did refer the case to the Director of C&P in July 2012. In a November 2012 response, the Director indicated that it would be premature to render a decision regarding entitlement to a TDIU prior to a decision on the claim for an increased rating concerning the low back disability. The Director also indicated that as the Board did not direct consideration of entitlement to a TDIU under 38 C.F.R. § 4.16, in the event that a schedular rating for the low back disability is assigned that falls short of the § 4.16 (a) requisites and your office (the AMC) concludes that the evidence of record supports a TDIU grant, a memorandum providing rationale for assigning a TDIU evaluation should be provided that accompanies the return of the file to C&P. The Director noted that the memorandum should include the required detailed as outlined in M21-MR, III.iv.6.B.5.c, for submitting claims to C&P for extraschedular TDIU consideration. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Refer the Veteran's TDIU claim under 38 C.F.R. § 4.16(b) to the appropriate department officials for extra-schedular consideration. 2. If entitlement to a TDIU is not granted, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) As noted above this case has been advanced on the Board's docket. It must also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs