Citation Nr: 1306267 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 08-15 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent disabling prior to August 4, 2011 for lumbar spine degenerative disc disease status-post discectomy (a back disability), and in excess of 40 percent disabling thereafter. 2. Entitlement to an initial disability rating in excess of 10 percent disabling prior to August 4, 2011 for left knee and left ankle absent deep reflexes (a left lower extremity neurological disability), and in excess of 20 percent disabling thereafter. 3. Entitlement to an initial disability rating in excess of 10 percent disabling for right knee and right ankle absent deep reflexes (a right lower extremity neurological disability). 4. Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1972 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC to obtain outstanding VA treatment records and Social Security Administration (SSA) records, and to afford the Veteran a VA examination. The case has been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion regarding the RO's compliance with the April 2011 Board Remand is included in the Duties to Notify and Assist section below. In a December 2012 rating decision, the AMC increased the disability rating for a back disability to 40 percent disabling, effective August 4, 2011 and increased the disability rating for a left lower extremity neurological disability to 20 percent disabling, effective August 4, 2011. The Veteran was advised of the December 2012 rating decision but did not express agreement with the decision or withdraw the appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an original or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Because the 40 percent disability rating for a back disability and the 20 percent disability rating for a left lower extremity neurological disability are not the maximum benefits available for the service-connected back disability and left lower extremity neurological disability, this appeal continues. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. Prior to August 4, 2011, the Veteran's back disability manifested by no less than 65 degrees of forward flexion and 210 combined range of motion with objective evidence of pain. It did not result in muscle spasm severe enough to result in abnormal gait or abnormal spinal contour. There was no ankylosis and the Veteran's back disability did not result in any incapacitating episodes requiring bed rest prescribed by a physician. 2. From August 4, 2011, forward, the Veteran's back disability manifested by forward flexion of 30 degrees or less. There is no ankylosis and the Veteran's back disability did not result in any incapacitating episodes requiring bed rest prescribed by a physician. 3. Prior to August 4, 2011, the Veteran's left lower extremity neurological disability resulted in mild, incomplete paralysis. 4. From August 4, 2011, forward, the Veteran's left lower extremity neurological disability resulted in moderate, incomplete paralysis. 5. For the entire period on appeal, the Veteran's right lower extremity neurological disability resulted in mild, incomplete paralysis. 6. The Veteran has been granted service connection for a back disability, which is rated 40 percent disabling, a right lower extremity neurological disability, which is rated 10 percent disabling, a left lower extremity neurological disability, which is rated 20 percent disabling, an epigastric herniorrhaphy scar, which is noncompensable, and a residual scar of a discectomy, which is noncompensable. The Veteran's combined disability rating is 60 percent. 7. The competent and probative evidence of record demonstrates that the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to August 4, 2011, the criteria for an evaluation in excess of 10 percent disabling for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2012). 2. From August 4, 2011, forward, the criteria for an evaluation in excess of 40 percent disabling for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2012). 3. Prior to August 4, 2011, the criteria for an evaluation in excess of 10 percent disabling for left lower extremity neurological disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 4. From August 4, 2011, forward, the criteria for an evaluation in excess of 20 percent disabling for left lower extremity neurological disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 5. For the entire appeal period, the criteria for an evaluation in excess of 10 percent disabling for right lower extremity neurological disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 6. The criteria for the assignment of a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b), 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. A July 2006 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The July 2006 notice letter also informed the Veteran as to how disability ratings and effective dates are assigned. Concerning the appeals for higher initial ratings, because they are appeals that arise from the Veteran's disagreement with the initial evaluation following the grant of service connection for a back disability, a right lower extremity neurological disability, and a left lower extremity neurological disability, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007). With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including those utilized by the Social Security Administration (SSA) in a disability administration, have been secured (obtained pursuant to the April 2011 Board Remand). The RO arranged for VA examinations in November 2006, October 2008, and August 2011 (pursuant to the April 2011 Board Remand). These examinations, taken together, are found to be adequate for rating purposes of the issue. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes); see also Stegall, 11 Vet. App. at 268. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The Court has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Back Disability Rating Analysis Service connection for a back disability was granted by the RO in an April 2007 rating decision that assigned a 10 percent evaluation under the provisions of Diagnostic Code 5243, which gave rise to this appeal. The rating was increased to 40 percent disabling in a December 2012 rating decision. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. 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) provides that, for VA compensation purposes, 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 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) provides that, 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which 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. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003); 5243 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). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Prior to August 4, 2011 In November 2006, the Veteran underwent a VA examination of the back. There, the examiner noted the Veteran's history of back injury in service in 1973 and back surgery in 1993. The Veteran reported that he could only sit for three to four minutes, could stand for three to four hours, and could walk for at least a half hour. He could lift 10 pounds frequently and 20 pounds occasionally. He could go up and down stairs slowly and was able to bend at his back. He could squat without any problems and could drive for at least two hours. The Veteran complained of intermittent pain which ranged from zero to nine on a scale of 10. The pain radiated down his left leg but only to his foot. He also reported having at least four attacks per week which would last a couple of hours. He had no flare-ups lasting over 24 hours in the past year. Upon physical examination, the Veteran had full range of motion with 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of lateral flexion bilaterally, and 30 degrees of rotation bilaterally. With pain, the Veteran lost 10 degrees of forward flexion and 5 degrees of extension. The Veteran had a normal gait and no indication of ankylosis. The examiner diagnosed him with chronic lumbar disk disease associated with muscle spasm without loss of range of motion but with absent deep reflexes. On X-ray, multilevel degenerative disc disease at L4, L5, and S1 were the worse. The Veteran was afforded another VA examination of the back in October 2008. At that time, the October 2008 VA examiner noted that since the last evaluation, the Veteran had no hospitalizations. The Veteran complained of constant pain in the lower back from eight to nine on a scale of 10, which radiated to both legs except the feet. He did not have parasthesias, but he had weakness in the legs. The Veteran had no bladder or bowel incontinence. Although he did have occasional soiling of his underwear during sleep, the examiner also indicated that the Veteran had a history of ulcerative colitis which causes diarrhea. The Veteran had no assistive devices, no flare-ups, and no incapacitating episodes. Upon physical examination, the Veteran had a long slow gait but without kyphoscoliosis. His range of motion measured at 75 degrees forward flexion with pain, 25 degrees of extension with pain, 30 degrees lateral flexion bilaterally with right lateral pain, and 30 degrees of rotation bilaterally with no pain. After repeat testing, there was 10 degrees of additional loss of forward flexion. The Veteran had normal bowel tones and there was no indication of ankylosis in the examination report. VA treatment records during this period on appeal reflect continued complaints of back pain treated with pain management therapy and medication. The schedular criteria for the rating of spine disabilities evaluates degenerative arthritis based on limitation of motion under the General Rating Formula for Disease and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243 (2012). Prior to August 4, 2011, the Veteran was in receipt of a 10 percent evaluation for his service-connected back disability. A higher 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine at greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. After a full review of the clinical and lay evidence, the Board concludes that prior to August 4, 2011, the Veteran's back disability is not shown to result in forward flexion of the thoracolumbar spine at greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The November 2006 VA examination indicated that the Veteran had full range of motion with pain. Forward flexion was reduced to 80 degrees and extension was reduced to 25 degrees due to pain. The October 2008 VA examination indicated that the Veteran had 75 degrees forward flexion with pain, 25 degrees of extension with pain, and a combined range of motion of the thoracolumbar spine of 220 degrees. Forward flexion was reduced to 65 degrees. As such, even with consideration of additional limitation due to pain and weakness, the Veteran's back disability did not demonstrate forward flexion greater than 30 degrees but not greater than 60 degrees, or a combined range-of-motion not greater than 120 degrees. Both the November 2006 and October 2008 VA examiners indicated that the Veteran was not additionally functionally limited due to endurance, incoordination, instability or flare-ups. The Veteran had measurable ranges of motion in the spine and he did not have ankylosis of the spine. Therefore, the Board finds that even with consideration of the Veteran's functional loss, prior to August 4, 2011, the Veteran's disability picture does not meet the criteria described for a 20 percent rating under Diagnostic Code 5242. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca, 8 Vet. App. at 206-7. From August 4, 2011, Forward In August 2011, the Veteran underwent a VA examination of the back pursuant to the April 2011 Board Remand. The VA examiner indicated an extensive review of the claims file and the Veteran's relevant medical history pertaining to his back. At that time, the Veteran reported driving only short distances, and limited mobility. He did not use assistive devices but was limited to 20 minutes of standing, 20 minutes of walking, 30 minutes of sitting, and had difficulty walking up stairs, all due to back pain. He reported no flare-ups or incapacitating episodes requiring physician ordered bed rest during the past year. Upon physical examination, the VA examiner noted that the Veteran ambulated with an antalgic gait. He had normal bowel sounds and rectal tone, no hepatosplenomegaly, no tenderness to palpation, and no rectal incontinence. He also had decreased lumbar lordosis along with lumbar dextroscoliosis. The examiner explained that the Veteran's bilateral lumbar paraspinal muscle spasm is significant enough to cause altered spinal contour and to contribute to an altered gait. There was no ankylosis. His range of motion measured at 60 degrees forward flexion with pain at 30 degrees, 15 degrees of extension with pain at 5 degrees, 15 degrees lateral flexion bilaterally with right lateral pain at the end of range, and 20 degrees of rotation bilaterally with pain at the end of range. After repeat use, the examiner indicated additional range of motion loss due to pain equal to 10 degrees of flexion and 5 degrees of extension and bilateral lateral flexion. There was no additional range of motion loss or favorable or unfavorable ankylosis due to weakened movement, excess fatigability, or incoordination. From August 4, 2011, the Veteran was assigned a 40 percent evaluation for his service-connected back disability. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. The August 2011 VA examination reflects, at worst and taking into consideration limitation of motion due to pain, 20 degrees of forward flexion with objective evidence of pain with range of motion testing. The Veteran had measurable ranges of motion in the spine and he did not have ankylosis of the spine. The Board finds that only with consideration of the Veteran's functional loss due to pain, from August 4, 2011, forward, that a 40 percent evaluation is justified. Range of motion of the thoracolumbar spine did not approximate unfavorable ankylosis of the entire thoracolumbar spine, even with consideration of functional loss due to pain, as required for a 50 percent rating under Diagnostic Code 5242. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca at 206-7. The Board notes that the General Rating Formula for Diseases and Injuries of the Spine allows for separate evaluations for neurologic manifestations, including bowel and bladder impairment. See 38 C.F.R. § 4.71a Note (1). Ratings based on paralysis, neuritis, or neuralgia of the peripheral nerves are discussed in more detail below. Intervertebral Disc Syndrome The Board has also considered whether a higher evaluation is warranted under Diagnostic Code 5243 both prior to and from August 4, 2011, forward. Diagnostic Code 5243 contemplates ratings for intervertebral disc syndrome based on incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Board has considered whether the Veteran's service-connected back disability has resulted in incapacitating episodes and the duration of any such episodes as described under Diagnostic Code 5243. A November 2006 VA examination shows that the Veteran had least four attacks per week which would last a couple of hours, but had no flare-ups lasting over 24 hours in the past year. Importantly, these were not shown to be incapacitating such that the Veteran required bed rest prescribed by a physician. There were no incapacitating episodes indicated in the October 2008 VA examination report. The August 2011 VA examination shows that the Veteran had no incapacitating episodes of the back during the past year. And, no incapacitating episodes due to back pain were indicated by the Veteran's extensive VA treatment records throughout both periods on appeal. The Board finds, therefore, that both prior to and from August 4, 2011, forward, the Veteran is not shown to have incapacitating episodes which required bed rest prescribed by a physician secondary to his back disability. Therefore, a higher evaluation is not assignable under Diagnostic Code 5243. Scar The Board has considered whether higher evaluations are available to the Veteran based on scar manifestations secondary to his back disability prior to and from August 4, 2011, forward. The record reflects that the Veteran underwent a discectomy in 1993. In this regard, the Veteran is already service-connected for scar residuals of a back diskectomy, currently evaluated at noncompensable. The regulations related to the rating of scars were revised effective October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). Generally, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-2003. However, as set forth in the Federal Register, the amended criteria only apply to claims received by VA on or after October 23, 2008, or in a case where a veteran requests review of his disability under the new rating criteria. Accordingly, because the Veteran's claim was received prior to October 23, 2008 and he did not specifically request consideration under the revised criteria, the revised criteria are not for application in this case. Under the applicable (earlier) regulations, to receive a disability rating for scars, the scar must be deep or cause limitation of motion and cover an area exceeding 6 square inches, superficial without limitation of motion and cover an area of at least 144 square inches, superficial and unstable, or superficial and painful on examination. 38 C.F.R. §§ 4.118, Diagnostic Codes 7801, 7802, 7803, 7804 (2007). The November 2006 VA examiner noted a back scar measuring 6 centimeters long by 0.25 centimeters wide. There was no pain on examination of the scar, there was no adherence to the underlying tissue, the texture of the skin was supple, the scar was stable, there was no elevation, depression, inflammation, edema, or keloid, and the scar was superficial. In October 2008, the VA examiner measured the Veteran's diskectomy scar at 7 centimeters in length and 0.3 centimeters wide. It was slightly lighter in color than his skin. It was nonadherent, mobile, nontender, and there was no underlying tissue loss. There was no keloid formation, the scar was smooth, and there were no signs of infection like discharge, inflammation, edema, or erythema. The Veteran's diskectomy scar was again evaluated by the August 2011 VA examiner. At that time, it was measured at 6 centimeters long and 0.3 centimeters in maximal width. The scar was deep without underlying soft tissue loss. The deep tissue disruption was equal in size to the overlying skin scar. There was no scar induced limitation of spine range of motion and it was smooth without inflammation, ulceration, or skin breakdown. The scar was normally pigmented throughout and caused no gross asymmetry or distortion of features. On palpation, the scar was level with the surrounding skin, flexible, nonindurated, nonedematous, nonadherent, and nontender. The Board finds that the weight of the lay and clinical evidence does not demonstrate that the Veteran is entitled to a compensable disability rating for the diskectomy scar residual. Id. The Board does not find evidence that the ratings assigned for the Veteran's back disability should be increased for any other separate period based on the facts found during either appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within either period on appeal. The findings of more serious impairment were first found in August 2011 during the VA examination. As such, evaluations in excess of 10 percent disabling for a back disability prior to August 4, 2011, and in excess of 40 percent disabling from August 4, 2011, forward, are not warranted. See Fenderson, 12 Vet. App. at 119; Hart, 21 Vet. App. at 509. Hence, the claim must be denied. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Left Lower Extremity Neurological Disability Rating Analysis Service connection for a left lower extremity neurological disability was granted by the RO in an April 2007 rating decision that assigned a 10 percent evaluation under the provisions of Diagnostic Code 8599-8520, which gave rise to this appeal. The rating was increased to 20 percent disabling in a December 2012 rating decision. When a particular disability is not listed among the diagnostic codes, a code ending in "99" is used; the first two numbers are selected from the portion of the schedule most approximating a Veteran's symptoms. 38 C.F.R. § 4.27. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 8599 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.124a. 38 C.F.R. §§ 4.20, 4.27 (2012). Diagnostic Code 8520 refers to paralysis of the sciatic nerve. Under Diagnostic Code 8520, complete paralysis of the sciatic nerve warrants an 80 percent rating. Incomplete paralysis is assigned ratings of 10 to 60 percent, depending on the severity of the claimant's symptoms. A 60 percent rating is assigned for severe paralysis with marked muscular muscle atrophy. A 40 percent rating is appropriate for moderately severe paralysis. Moderate paralysis warrants a 20 percent rating, and a 10 percent rating is assigned for mild paralysis. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The Board observes that the words "mild," "moderate," "moderately severe," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). Prior to August 4, 2011 During the November 2006 VA examination, the Veteran had normal leg raising tests and Romberg and Babinski signs were absent. His cranial nerves 2 to 12 were intact, he had full muscle strength, and there was no evidence of muscle wasting or atrophy. The Veteran's deep reflexes were absent both in his knees and in his ankles, bilaterally, which had been a problem for many years. His sensory examination to pain, touch, vibration, and pinprick were grossly intact. There was no evidence of any neurological lesions and the Veteran was able to heel and toe walk. An MRI taken in May 2008 indicated mild left greater than right bilateral foraminal narrowing. There was also mild effacement of the left greater than right S1 nerve root sleeve. In the October 2008 VA examination report, the Veteran complained of pain that radiated to his legs. His feet were not involved. He also reported having no paresthesias but did have weakness in the legs. Upon examination, the Veteran's cranial nerves were intact but his deep tendon reflexes were absent in the knees and ankles, bilaterally. He had no muscle loss, no weakness, no atrophy, and no clonus. Examination of the sensory system revealed normal fine touch. His left lower extremity was normal for vibratory sense. There was hyperesthesia on the posterior aspect of the leg on the left side. He had slightly decreased pinprick sensation along the lateral border of the left lower extremity. He was able to walk on the level ground without difficulty but had some unsteadiness on heel-to-toe walking. Heel walking was difficult because he had pain in the back of his thighs, leg, and lower back. Toe walking was normal. The Veteran could only squat once and then had difficulty getting up from squatting. In August 2009, the Veteran sought VA treatment for pain in both legs. He reported that he had fallen twice recently because his knees would give out. He had a positive left straight leg raise and an altered gait with left leg limp. In February 2010, the Veteran had no neurologic findings. He had no foot drop and a negative straight leg raise. A September 2010 VA treatment report indicated that Veteran's report that he could not stand long and that he occasionally loses strength in his legs and has fallen. He reported no pain in the knees and no swelling. A June 2011 VA treatment report indicated that the Veteran had pain radiation into the left lower extremity. On neurologic examination, the Veteran was non-focal. He had a normal gait and his motor testing was 5/5. His reflexes were +1 and symmetric bilaterally in the patellar and Achilles. There was no foot drop and he had a negative straight leg raise. The assessment was acute exacerbation of chronic back pain without neurologic compromise. Based on the above, during this period on appeal, the Board concludes that weight of the lay and clinical evidence demonstrates that the criteria for a 10 percent evaluation for left lower extremity neurological disability is appropriate. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. The Veteran's left lower extremity neurological disability, prior to August 4, 2011, demonstrates impairment that is mild in nature. The Board notes that August 2009 and September 2010 treatment records indicated that the Veteran had fallen due to weakness and pain, and that he had a one-time, positive left straight leg raise. However, the Board finds that the preponderance of the other evidence of record during this appeal period (other than the August 2009 and September 2010 reports) does not demonstrate that a 10 percent rating is warranted. Although the Board notes that it is permissible to assign a 20 percent rating for sensory involvement, the facts here do not present the sort of case that would justify a finding that the Veteran's left lower extremity neurological disability is moderate. The absent reflex and complaints of radiating pain and decreased pinprick are indicative of mild incomplete paralysis of the left sciatic nerve. The next higher rating would require moderate incomplete paralysis. The Board finds that the weight of the evidence does not demonstrate organic changes, such as muscle atrophy, trophic changes, etc., that would warrant a higher rating or demonstrate more than a mild degree of incomplete paralysis of the left sciatic nerve. The findings are sensory with absent reflex, and the Veteran's impairment is not shown to be more than mild. As such, ratings in excess of 10 percent for the Veteran's service-connected left lower extremity neurological disability, prior to August 4, 2011, is not warranted. From August 4, 2011, Forward During the August 2011 VA examination, the Veteran complained of left lower extremity radicular pain, paresthesias, and numbness, which is constant. He rated his radicular pain as 8 out of 10 in severity. Upon examination, the VA examiner indicated that the Veteran has absent deep tendon reflexes at the patellar and Achilles tendons bilaterally. There is decreased sensation to light touch and sharp throughout the left leg (anteriorly, medially, laterally, and posteriorly) and throughout the left foot (including dorsal, plantar, medial, and lateral surfaces). There is no lower limb atrophy. He has full strength of left hip flexion, left knee extension, and left knee flexion. He had 4/5 strength of the left ankle dorsiflexion, great toe extension, and plantar flexion, which was limited by weakness. During this period on appeal, the Veteran's left lower extremity neurological disability more closely approximates a 20 percent rating, reflecting moderate impairment. The weight of the lay and clinical evidence of record does not demonstrate that the Veteran's left lower extremity neurological disability ever rose to a "moderately severe" level at any time from August 4, 2011, forward. Indeed, the Veteran had increased pain, paresthesia, and numbness, reflecting a worsening of the disability; however, he had no limb atrophy and near full strength with the exception of the left ankle dorsiflexion, great toe extension, and plantar flexion. The Board does not find evidence that the ratings assigned for the Veteran's left lower extremity neurological disability should be increased for any other separate period based on the facts found during either appeal period. The weight of the lay and clinical evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within either period on appeal. The findings of more serious impairment were first found in August 2011 during the VA examination. As such, evaluations in excess of 10 percent disabling for a left lower extremity neurological disability prior to August 4, 2011, and in excess of 20 percent disabling from August 4, 2011, forward, are not warranted. See Fenderson at 119; Hart at 509. Based on the above, the claim must be denied. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert, 1 Vet. App. at 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Right Lower Extremity Neurological Disability Rating Analysis During the November 2006 VA examination, the Veteran had normal leg raising tests and Romberg and Babinski signs were absent. His cranial nerves 2 to 12 were intact, he had full muscle strength, and there was no evidence of muscle wasting or atrophy. The Veteran's deep reflexes were absent both in his knees and in his ankles, bilaterally, which had been a problem for many years. His sensory examination to pain, touch, vibration, and pinprick were grossly intact. There was no evidence of any neurological lesions and the Veteran was able to heel and toe walk. An MRI taken in May 2008 indicated mild left great than right bilateral foraminal narrowing. There was also mild effacement of the left greater than right S1 nerve root sleeve. In the October 2008 VA examination report, the Veteran complained of pain that radiated to his legs. His feet were not involved. He also reported having no paresthesias but did have weakness in the legs. Upon examination, the Veteran's cranial nerves were intact but his deep tendon reflexes were absent in the knees and ankles, bilaterally. He had no muscle loss, no weakness, no atrophy, and no clonus. Examination of the sensory system revealed normal fine touch. There was decreased vibratory sense mainly on the right knee and both malleoli in the right ankle. Examination for pinprick sensation revealed decreased pinprick on the anterior and lateral aspect of the right lower leg (almost upper two thirds of the leg), and normal pinprick on the foot. He was able to walk on the level ground without difficulty but had some unsteadiness on heel-to-toe walking. Heel walking was difficult because he had pain in the back of his thighs, leg, and lower back. Toe walking was normal. The Veteran could only squat once and then had difficulty getting up from squatting. In August 2009, the Veteran sought VA treatment for pain in both legs. He reported that he had fallen twice recently because his knees would give out. He had a negative right straight leg raise. In February 2010, the Veteran had no neurologic findings. He had no foot drop and a negative straight leg raise. A September 2010 VA treatment report indicated that Veteran's report that he could not stand long and that he occasionally loses strength in his legs and has fallen. He reported no pain in the knees and no swelling. On neurologic examination in June 2011, the Veteran was non-focal. He had a normal gait and his motor testing was 5/5. His reflexes were +1 and symmetric bilaterally in the patellar and Achilles. There was no foot drop and he had a negative straight leg raise. The assessment was acute exacerbation of chronic back pain without neurologic compromise. During the August 2011 VA examination, the Veteran did not report having any right lower extremity radicular pain, numbness, or parasthesias. Upon examination, the VA examiner indicated that the Veteran had absent deep tendon reflexes at the patellar and Achilles tendons bilaterally. Sensation was intact to light touch, sharp, temperature, and vibration. There was no lower limb atrophy. He had full strength of right hip flexion, right knee extension, right knee flexion, right ankle dorsiflexion, right great toe extension, and right plantar flexion. Based on the above, during the entire period on appeal, the Board concludes that the weight of the lay and clinical evidence demonstrates that the criteria for a 10 percent evaluation for right lower extremity neurological disability is appropriate. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. The Veteran's right lower extremity neurological disability demonstrates impairment that is mild in nature. The absent reflex and complaints of pain, decreased vibratory sense, and decreased pinprick are indicative of mild incomplete paralysis of the right sciatic nerve. The next higher rating would require moderate incomplete paralysis. Although the Board notes that it is permissible to assign a 20 percent rating for sensory involvement, the facts here do not present the sort of case that would justify a finding that the Veteran's right lower extremity neurological disability is moderate. The Board finds evidence does not demonstrate organic changes, such as muscle atrophy, trophic changes, etc., and the weight of the evidence does not demonstrate more than a mild degree of incomplete paralysis of the right sciatic nerve. The findings are sensory with absent reflex, and the Veteran's impairment is not shown to be more than mild. As such, a rating in excess of 10 percent for the Veteran's service-connected right lower extremity neurological disability is not warranted. The Board does not find evidence that the ratings assigned for the Veteran's right lower extremity neurological disability should be increased for any other separate period based on the facts found during the appeal period. The weight of the evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the period on appeal. As such, an evaluation in excess of 10 percent disabling for right lower extremity neurological disability is not warranted. See Fenderson at 119; Hart at 509. Based on the above, the claim must be denied. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert at 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's back disability has manifested in arthritis, painful movement, and limited range of motion. The schedular criteria for rating the back disability (General Rating Formula for Diseases and Injuries of the Spine) specifically provide for ratings based on the presence of painful arthritis; limitations of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. In this case, comparing the Veteran's disability level and symptomatology of the back to the rating schedule, the degree of disability of the back throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. Regarding the ratings for the Veteran's bilateral lower extremity neurological disabilities, the first step of the extraschedular analysis shows that the Veteran's right and left lower extremity neurological disability is characterized by loss of reflexes, bilaterally, and pain, numbness, and parathesia in the left lower extremity, which is specifically contemplated in the rating criteria as being equal to a maximum of severe, incomplete paralysis. Thus, the schedular rating criteria specifically provides for the ratings assigned for each lower extremity and the assigned schedular ratings are, therefore, adequate. 38 C.F.R. § 4.124a, Code 8520. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. Here, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the back disability or neurological manifestations of the bilateral lower extremities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In Moore, 1 Vet. App. at 359, the Court noted that the following standard has been announced by the United States Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2012). Hence, a TDIU may be awarded on either a schedular basis or an extraschedular basis. The Veteran has been granted service connection for a back disability, which is rated 40 percent disabling, a right lower extremity neurological disability, which is rated 10 percent disabling, a left lower extremity neurological disability, which is rated 20 percent disabling, an epigastric herniorrhaphy scar, which is noncompensable, and a residual scar of a discectomy, which is noncompensable. His combined disability rating is 60 percent. See 38 C.F.R. § 4.25 (containing the combined rating table). The Veteran's service-connected disabilities do not meet the schedular criteria for consideration of TDIU as there is not one disability rated at least 60 percent disabling, or two or more disabilities with a combined rating of at least 70 percent with one disability ratable at 40 percent or more. 38 C.F.R. § 4.16(a). Therefore, a grant of entitlement of TDIU on a schedular basis under 38 C.F.R. § 4.16(a) is not for application in this case. In accordance with 38 C.F.R. § 4.16(b), the Board has considered whether the Veteran's claim for a total rating based on unemployability due to service-connected disability should be granted. The Veteran does not currently meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). Notwithstanding the provisions of 38 C.F.R. § 4.16(a), it is VA's policy to grant a TDIU in all cases where a service connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is not permitted to grant a TDIU under 38 C.F.R. § 4.16(b) in the first instance. Instead, it must remand the case so that the claim can be considered by VA's Director of Compensation and Pension. Bowling v. Principi, 15 Vet. App. 1 (2001). The AMC referred the TDIU claim to the Director of Compensation and Pension in August 2012. In November 2012, the Director determined that the evidence did not demonstrate that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Because the issue of entitlement to TDIU under 4.16(b) has already been decided in the first instance by VA's Director of Compensation and Pension, the Board may now consider the question of whether a TDIU rating is warranted under that provision. The fundamental question herein is whether the Veteran's service-connected disabilities, alone, render him unemployable. In November 2006, a VA examiner noted the Veteran's report that he lost his previous job because of his persistent coughing (a non-service-connected disability) and that he is able to work six hours per day helping his wife. The VA examiner opined that under those circumstances, the Veteran could work six hours per day with a sedentary or light duty type situation, but that he would find it very difficult to obtain employment with a chronic cough until such time as he is diagnosed and treated. She indicated that the Veteran's diarrhea (a non-service-connected disability) could also be a problem with regards to obtaining employment; however, she concluded that the Veteran's medical conditions do not preclude him from a sedentary type job or light duty situation. Another medical opinion was provided in an October 2008 VA examination report. At that time, the VA examiner noted that the Veteran did have functional limitation, especially of flexion and extension of both knees, and was not able to have prolonged standing. His standing was limited only to 30 minutes and his walking was also limited. The Veteran could sit for an hour; therefore, the examiner opined that sedentary employment was feasible with provision for him to get up and stretch after every hour. Pursuant to the April 2011 Board Remand, which found these examinations to be inadequate with respect to determining whether the Veteran's service-connected disabilities, alone, render him unable to obtain substantially gainful employment, the Veteran underwent another VA examination in August 2011. At that time, the VA examiner indicated her extensive and thorough review of the Veteran's claims file and relevant medical history. After a review of the evidence and based on her expertise as a board-certified Physical Medicine and Rehabilitation and Occupational Medicine physician, the examiner opined that the Veteran is not likely able to either obtain or retain employment due to his service-connected disabilities. She noted that her opinion is also consistent with the Veteran's education and occupational experience, and irrespective of age or any non-service-connected disorders. The August 2011 VA examiner stated that the Veteran's service-connected absent bilateral knee and ankle deep tendon reflexes, epigastric herniorrhaphy scar, and residual scar of a diskectomy do not impact his ability to obtain or retain employment. However, she stated that his service-connected back disability clearly does. She reasoned that the objective clinical and radiographic findings corroborate the Veteran's self-reported worsening of back symptomatology over time. In light of those findings, the examiner explained that the Veteran would be unable to obtain or retain employment, even sedentary employment. The Veteran also requires use of strong pain medications for his back pain and left lower extremity radicular symptoms. The examiner indicated that his medications have cognitive side effects and together, they are even more pronounced and further prohibit the Veteran's employability. The Board has also reviewed the Veteran's documents from the SSA, from which he is receiving disability benefits for service-connected back disability. Indeed, the partially favorable SSA disability determination, dated in March 2009, indicated that the Veteran's disability began in July 2008 due to, in part, his back disability. The Board notes that VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). After a full review of the record, the Board concludes that entitlement to TDIU is warranted. The preponderance of the evidence demonstrates that his service-connected disabilities, alone, render the Veteran unemployable. The governing jurisprudence as well as the law and regulations applicable herein reflect that Congress has created the veterans' benefits system to be both "paternalistic" and "uniquely pro-claimant." Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). Moreover, the benefit of the doubt goes to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert, supra. In this instance, the most probative evidence is the August 2011 VA examiner's opinion. The opinion supports the finding that the Veteran is not able to secure or follow gainful employment due to the service-connected back disability. The Veteran's worsening back symptoms, including the medications used to treat the back disability and his radicular symptoms, would preclude even a sedentary occupation. The Board finds that the August 2011 VA opinion is probative as it is based on a full review of the claims file, discusses the Veteran's service-connected disabilities, addresses symptoms associated with the service-connected disabilities, discusses the relevant clinical evidence, and includes an adequate rationale to support the conclusions made. There is also competent and probative evidence included in the August 2011 VA examination report which shows that pain associated with the back disability, alone, is productive of unemployability in that it precludes more than 20 minutes of standing, 20 minutes of walking, or 30 minutes of sitting, and that the medication has significant cognitive effects. In conjunction with the foregoing, and given the Veteran's work experience and affording him the benefit-of-the-doubt, the Board concludes that TDIU under 38 C.F.R. § 4.16(b) is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; Gilbert, supra. ORDER An initial disability rating in excess of 10 percent disabling prior to August 4, 2011 for a back disability, and in excess of 40 percent disabling thereafter, is denied. An initial disability rating in excess of 10 percent disabling prior to August 4, 2011 for a left lower extremity neurological disability, and in excess of 20 percent disabling thereafter, is denied. An initial disability rating in excess of 10 percent disabling for a right lower extremity neurological disability is denied. A TDIU is granted. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs