Citation Nr: 1310225 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-06 315A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for lumbar spondylosis with spinal stenosis prior to December 13, 2011. 2. Entitlement to an initial rating in excess of 20 percent for lumbar spondylosis with spinal stenosis from December 13, 2011. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), prior to August 31, 2009. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from November 1962 to October 1968, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Although the Veteran initially requested a Travel Board hearing in March 2007, he subsequently withdrew this request in July 2007. See 38 C.F.R. § 20.704 (2012). When the case was previously before the Board in November 2011, the issues of entitlement to an initial rating in excess of 20 percent for lumbar spondylosis with spinal stenosis and entitlement to a TDIU were remanded to the RO for additional development. Thereafter, in an October 2012 rating decision, a TDIU was granted, effective August 31, 2009. During the pendency of the appeal, the U.S. Court of Appeals for Veterans Claims (Court) held that a TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). As discussed further below, the Veteran initiated his appeal for a higher initial rating of his service-connected lumbar spondylosis with spinal stenosis in August 2006 and he indicated at his April 2006 VA examination that he could not work due to his back pain. Thus, given the evidence of a medical disability, the claim for the highest rating possible, and evidence of unemployability, the claim for a TDIU prior to August 31, 2009 is properly before the Board as part of the appeal for an increased initial rating for lumbar spine spondylosis and spinal stenosis. In January 2011, the Director of Compensation and Pension Services denied an award of TDIU on an extraschedular basis. Because the issue of a TDIU on an extraschedular basis has been considered by the Compensation and Pension Services Director, the Board may now review the denial of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001). As noted in the November 2011 remand, the issues of entitlement to service connection for a heart disability, to include as secondary to service-connected diabetes mellitus, and entitlement to special monthly compensation based upon the need for aid and attendance or housebound status have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. For the time period prior to December 13, 2011, the Veteran's lumbar spondylosis with spinal stenosis was manifested by forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees, without functional loss beyond that contemplated by the current rating, ankylosis, intervertebral disc syndrome requiring bed rest prescribed by a physician, or neurological impairment. 2. For the time period beginning on December 13, 2011, the Veteran's lumbar spondylosis with spinal stenosis is manifested by forward flexion of the lumbar spine to 80 degrees with functional loss beyond that contemplated by the current rating, but not by ankylosis, intervertebral disc syndrome requiring bed rest prescribed by a physician, or neurological impairment. 3. For the time period prior to August 31, 2009, the Veteran's service-connected disabilities were degenerative disc disease of the cervical spine with scar, rated as 30 percent disabling; diabetes mellitus, type II, rated as 20 percent disabling; lumbar spondylosis with spinal stenosis, rated as 20 percent disabling; radiculopathy of the left upper extremity, rated as 10 percent disabling; and allergic rhinitis, rated as noncompensable. The combined evaluation for these disabilities is 60 percent. As such, the minimum schedular criteria for TDIU are not met for this time period. 4. For the time period prior to August 31, 2009, the Veteran's service-connected cervical spine disability precluded him from securing or following substantially gainful employment consistent with his education and industrial background. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for lumbar spondylosis with spinal stenosis prior to December 13, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for an initial rating of 40 percent, but no higher, for lumbar spondylosis with spinal stenosis beginning on December 13, 2011 have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 3. The criteria for entitlement to a TDIU on an extraschedular basis are met for the time period prior to August 31, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). March 2006 and June 2007 letters satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the initial rating of the disability on appeal, as the Veteran did in August 2006 with respect to his lumbar spondylosis with spinal stenosis, does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to notice is non-prejudicial. See id; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after August 29, 2000, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to any downstream elements). In this decision, the Board grants entitlement to a TDIU prior to August 31, 2009, on an extraschedular basis, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary with respect to this claim. VA examinations were conducted in April 2006, October 2007, and December 2011; the Veteran has not argued, and the record does not reflect that these examinations were inadequate for rating purposes. The examinations were adequate because they were based on an examination of the Veteran and provided sufficient information to address the rating criteria for the disability on appeal. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its November 2011 remand. Specifically, the November 2011 Board remand instructed the RO to obtain all VA treatment records from the VA North Texas Health Care System dated from September 2010 to the present, and to obtain all records of treatment dating from September 2001 to the present from the VA facility in Bonham, Texas. The November 2011 remand also instructed the RO to provide the Veteran with a VA examination in order to determine the current level of severity of his service-connected lumbar spondylosis with spinal stenosis. The Board finds that the RO has complied with the Board's instructions by obtaining the requested records and that the December 2011 VA examination report substantially complies with the Board's November 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Analysis Increased Initial Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for lumbar spondylosis with spinal stenosis was granted in the June 2006 rating decision, notice of which was mailed to the Veteran in July 2006, and an initial 20 percent rating was assigned effective January 27, 2006, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 is subsumed into the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 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 warrants a 20 percent rating. 38 C.F.R. § 4.71a, General Rating Formula (2012). Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating; unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating; and unfavorable ankylosis of the entire spine warrants the maximum 100 percent rating. Id. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed., 2003). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The evidence of record does not support an initial rating in excess of 20 percent prior to December 13, 2011, but it does support a rating in excess of 20 percent beginning on December 13, 2011, for the Veteran's lumbar spondylosis with spinal stenosis based on the General Rating Formula. The medical evidence of record includes an April 2006 VA examination report, which reveals that the Veteran reported low back pain, weakness, stiffness, fatigability and lack of endurance. He stated that the pain is constant, occurs daily and is moderate to severe. The Veteran takes multiple medications, to include Etodolac, Tramadol, Flexeril, Aleve, Tylenol, and Ibuprofen. Symptoms are worse with movement, sitting too long, and lying down too long. The Veteran is unable to walk more than 50 to 70 feet, he is unable to sit in the same position for more than a few minutes, and he is unable to drive more than 30 minutes. Pain is relieved partially by medication, rest, and avoiding heavy exertion. There is no additional limitation of movement during a flare-up. There are no associated features such as fevers, weight loss, malaise, dizziness, visual disturbances, numbness, weakness, bladder or bowel complaints, or erectile dysfunction. The Veteran does not use any assistive devices such as a cane, crutches, or walker. He reported having a back brace that he does not now use. He is not unsteady and has had no falls. The Veteran indicated that his back disability moderately to severely impacts his activities of daily living and he reported being unable to work due to pain. Physical examination revealed normal posture and gait, normal curvatures of the spine, and symmetry in appearance of the spine. Gait was normal. Range of motion of the thoracolumbar spine was to 50 degrees, with pain setting in at 30 degrees. Extension was to 30 degrees, with pain setting in at 20 degrees. Lateral flexion bilaterally was 25 to 30 degrees with pain throughout the range of motion. Bilateral lateral rotation was to 25 to 30 degrees with pain throughout the range of motion. The examiner stated that there was no additional limitation due to pain, fatigue, weakness, or lack of endurance on repetitive use or during flare-ups. There was no tenderness of the low back. There was mild discomfort in the paraspinal muscles in the thoracolumbar spine. There were no postural abnormalities, and ankylosis was not present. Neurological examination was normal. Motor strength was full. Reflexes were 1+ bilaterally. Deep tendon reflexes were normal, and plantar reflexes were normal. Straight leg raise tests were not performed beyond 30 degrees. Intervertebral disc syndrome was not present. An October 2007 VA general medical examination report notes that the Veteran complains of constant pain rated at 4/10 in intensity. The Veteran's low back pain will increase with overuse, and the spine will be sore after leaning over for a few minutes like while washing dishes or making his bed. The low back pain is a dull ache across his lumbosacral spine. It does not radiate and there is no dysesthesias of either lower extremity. There are no other associated symptoms or features. He does not use any assistive devices or braces. He is not unsteady. He has been unemployed since 2003. He used to work in home modifications and building of homes doing carpentry. Examination revealed normal range of motion. Flexion was from zero to 90 degrees and extension was from zero to 30 degrees. Rotation was from zero to 30 degrees. There was no pain on the lumbar spine range of motion testing. The lumbar contour was noted to be preserved. Musculature was normal. There was no spasm and only mild tenderness over the paraspinal lumbar muscles. Repetitive forward flexions did not decrease range of motion or spine function. Neurological examination revealed that deep tendon reflexes were depressed in general, absent at the level of both knees and both Achilles tendons. There was no objective or subjective decreased sensation on either extremity. The Veteran was able to walk on his heels and toes with some unsteadiness due to deconditioning. Lasegue's sign was negative bilaterally. MRI revealed grade I anterolisthesis of L4 on L5. The disc at this level is desiccated and reduced in height. Laminectomy was present from L2 through L5. There is degenerative disc disease at L2-3, L3-4, and L4-5. There is mild compromise of neural foramina at L2-3. There is moderate compromise of right neural foramen at L3-4. There is moderate compromise of the right neural foramen, and moderate to severe compromise on the left at L4-5 level. Diagnoses included degenerative disc disease of the lumbar spine with stenosis. VA treatment records dated in March, August, and September 2012 show that the Veteran has chronic back pain. The Veteran had an MRI of his lumbar spine in March 2011. The report notes an impression of status post L2 through L5 laminectomies where the neural foramina are level narrowed due to facet hypertrophy that also cause mild narrowing of the spinal canal at the L3-4 level. The L4-5 disc is also surrounded by degenerative endplate changes compatible with subacute degenerative disc disease. The December 13, 2011 VA examination notes that the Veteran is diagnosed with lumbar degenerative disc disease and degenerative joint disease with multiple level herniated nucleus pulposus, status post laminectomy with residual severe lumbar myofascial pain. The Veteran reported that he did not have flare-ups. He also reported no current lower extremity radiculopathy. He has chronic pain at rest. Range of motion testing revealed forward flexion to 80 degrees, with objective evidence of painful motion throughout the entire range of motion. Extension was from zero to 10 degrees, with objective evidence of painful motion throughout the entire range of motion. Right and left lateral flexion were each to 10 degrees, with pain throughout the ranges of motion. Right and left lateral rotation were each to 15 degrees with objective evidence of pain throughout the entire range of motion. After performing three repetitions, range of motion was the same. The examiner opined that there was no additional limitation in the range of motion of the thoracolumbar spine following repetitive use testing. However, the examiner stated that the Veteran has functional loss and/or functional impairment of the thoracolumbar spine and/or additional limitation of range of motion of the thoracolumbar spine after repetitive use due to less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing. There was no incoordination, swelling, deformity, atrophy of disuse, or instability of station. There was tenderness or pain to palpation of the tissue of the thoracolumbar spine. There was also guarding or muscle spasm of the thoracolumbar spine severe enough to cause abnormal gait. Muscle strength was full for hips, knees, ankles, and great toe. There was no muscle atrophy. Reflexes were 2+ (normal) on the right for knees and ankles. They were abnormal on the left, indicating hyperactive reflexes with clonus. Sensory examination was normal for the upper anterior thigh and thigh/knee. Sensory examination was decreased for the lower leg/ankle and absent feet/toes. The examiner found the neurological findings to be diabetic-induced peripheral neuropathy related, and not due to radiculopathy. Straight leg raising tests were negative bilaterally. There was no radicular pain or other signs or symptoms due to radiculopathy. The examiner noted that the Veteran has neurogenic bladder due to diabetes, and not due to his lumbar condition. There is no incontinence of stool. The examiner further indicated that the Veteran does not have intervertebral disc syndrome. It was noted that the Veteran uses a wheelchair due to left hemiplegia secondary to cerebrovascular accident. The examiner stated that the Veteran has no painful and/or unstable scars and no scars are greater than 29 square centimeters. There is no vertebral fracture. The examiner opined that the Veteran's thoracolumbar spine condition impacts his ability to work in that he is unable to engage in any type of manual labor standing or walking, due to lumbar spine pain. He is also unable to engage in any type of purely sedentary employment because of the recurrent episodes of lumbar and cervical pain which occur with prolonged sitting or keyboarding. Currently the Veteran is unable to engage in gainful employment due to his service-connected lumbar and cervical conditions. The examiner noted that the claims file was reviewed. Based upon the evidence of record for the time period prior to December 13, 2011, a higher rating based upon limitation of motion is not warranted. Initially, the Board notes that at the April 2006 VA examination, flexion of the thoracolumbar spine was to 50 degrees, with pain setting in at 30 degrees. At the October 2007 VA examination, flexion was to 90 degrees without any pain. Consequently, the varying ranges of motion at these two examinations shows that, even considering the point at which pain set in, forward flexion of the thoracolumbar spine was, overall for this time period, greater than 30 degrees but not greater than 60 degrees, and a higher rating is not available on that basis. In this regard, these two examination reports, when considered together, do not show that the Veteran's forward flexion of the thoracolumbar spine was to 30 degrees or less. While pain set in at 30 degrees in April 2006, the Board cannot ignore the fact that the Veteran could flex his thoracolumbar spine to a full 90 degrees without pain in October 2007. As such, a higher rating is not warranted based upon limitation of motion for the time period prior to December 13, 2011. The evidence of record also does not show that the Veteran's lumbar spondylosis with spinal stenosis caused a level of functional loss greater than that already contemplated by the assigned 20 percent rating prior to December 13, 2011. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (2012). During the time period prior to December 13, 2011, there is evidence that the Veteran experienced pain during forward flexion and other ranges of motion of the thoracolumbar spine at the April 2006 VA examination. However, the Board considered that painful motion set in at 30 degrees of flexion in April 2006. Moreover, the April 2006 VA examiner found that there was no additional loss of motion of the joint or due to pain, fatigue, weakness, or lack of endurance on repetitive use or during flare-ups. At the October 2007 VA examination, the Veteran had no pain on range of motion testing whatsoever, and repetitive forward flexion did not decrease range of motion or spine function. As previously noted, despite pain setting in at 30 degrees in April 2006, the finding of a lack of additional loss of motion on repetitive use of the joint or due to pain, fatigue, weakness, lack of endurance or during flare-ups at that examination, and the lack of any pain on range of motion testing at the October 2007 VA examination, coupled with the full flexion exhibited at that examination, the Board concludes that there is no greater functional loss than that already contemplated by the assigned 20 percent rating prior to December 13, 2011. In sum, the record does not establish the existence of functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 beyond that contemplated in the currently assigned rating for this time period prior to December 13, 2011. However, a higher, 40 percent rating based upon limitation of motion is warranted for the time period beginning on December 13, 2011. In giving the Veteran the benefit of the doubt, the Board finds that the Veteran's lumbar spondylosis with spinal stenosis causes a level of functional loss greater than that already contemplated by the assigned 20 percent rating beginning on December 13, 2011. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (2012). Notably, at the December 13, 2011 VA examination, although forward flexion was to 80 degrees, objective evidence of pain was present throughout the range of motion, and more importantly, the examiner stated that there was additional limitation of range of motion of the thoracolumbar spine after repetitive use due to due to less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing. Based upon this finding of the December 2011 VA examiner, the Board finds that there is greater functional loss than that contemplated by the assigned 20 percent rating beginning on December 13, 2011. As such, a higher, 40 percent rating should be granted based upon limitation of forward flexion of the thoracolumbar spine to 30 degrees or less for this time period. See DeLuca v. Brown, 8 Vet. App. 202 (1995). A rating in excess of 40 percent is not warranted beginning on December 13, 2011, however, because ankylosis has not been shown. Despite the painful motion, weakness, excess fatigability and other limiting factors, the Veteran does retain some useful motion of the spine. Based upon the findings at the examinations and the opinions of the examiners, the Board concludes that forward flexion of the thoracolumbar spine during this time period would not be reduced to unfavorable ankylosis during flare-ups or repetitive use. Moreover, the evidence does not suggest that there is unfavorable ankylosis of the entire spine. Instead, the evidence tends to show that any additional loss of motion due to flare-ups or repetitive use is contemplated by the 40 percent rating granted herein for the time period beginning on December 13, 2011. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. § 4.71a, General Rating Formula; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In sum, the record does not establish the existence of functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 beyond that contemplated in the newly assigned 40 percent rating for the time period beginning on December 13, 2011. The provisions of 38 C.F.R. § 4.71a indicate that intervertebral disc syndrome should be evaluated under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. However, the VA examiners who conducted the April 2006, October 2007, and December 2011 VA examinations determined on clinical examination that there were no signs of intervertebral disc syndrome. In any event, the evidence does not reflect that the Veteran has ever been prescribed bed rest by a physician at any point during the entire appeal period. He has also not specifically alleged that he has had any incapacitating episodes of back pain where bed rest was prescribed by a physician in the past 12 months. Thus, the Veteran cannot receive a higher rating for his lumbar spondylosis with spinal stenosis based upon incapacitating episodes at any point during the appeal period. Under the General Rating Formula for Diseases and Injuries of the Spine, Note (1) specifies that any associated objective neurologic abnormalities, to include radiculopathy, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Board notes that the April 2006 VA examination report reflects that neurological examination was normal and motor strength was full. The October 2007 VA examiner found that there was no objective or subjective decreased sensation on either extremity. Lasegue's sign was negative bilaterally. The December 2011 VA examiner found numerous neurological issues in the lower extremities, but reported that these were the result of the Veteran's peripheral neuropathy, which was noted to be due to his diabetes mellitus. Reflexes were noted to be hypoactive in April 2006 but no neurological component of the lumbar spondylosis with spinal stenosis was diagnosed at that time. Moreover, the October 2007 VA examiner did not diagnose radiculopathy or any other neurological component to the service-connected lumbar spine disability. Finally, as noted above, despite the multiple neurological findings on VA examination in December 2011, these were noted to be solely related to the Veteran's peripheral neuropathy, which, again, was noted to be related to his diabetes mellitus. Importantly, the December 2011 VA examiner specifically stated that there was no radicular pain or other signs or symptoms due to radiculopathy, and instead opined that the positive neurological findings were related to diabetic-induced peripheral neuropathy. Finally, the neurogenic bladder found at the December 2011 examination was also specifically determined to be due to diabetes and not to the lumbar spine condition. Therefore, there is no evidence of neurological impairment from the service-connected lumbar spondylosis with spinal stenosis. As such, a separate rating for neurological impairment is not warranted at any time during the initial evaluation period. In sum, the Board notes that there is no indication in the medical evidence of record that the Veteran's lumbar spondylosis with spinal stenosis warrants an initial rating in excess of the currently assigned 20 percent rating prior to December 13, 2011. However, a higher 40 percent rating is granted beginning on December 13, 2011. See Fenderson, 12 Vet. App. 119, 126 (1999). The preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent prior to December 13, 2011 and a rating in excess of 40 percent beginning on December 13, 2011. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching these conclusions, the Board acknowledges the Veteran's belief that his lumbar spondylosis with spinal stenosis is more severe than the 20 percent disability evaluation prior to December 13, 2011 reflects. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the ratings schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology and the Board has addressed the Veteran's reported symptoms, the Board finds that the medical evidence of record is more persuasive regarding whether he is entitled to a higher disability rating in accordance with the schedular criteria for this time period. The VA examiners considered the Veteran's reported symptoms and provided the clinical findings to rate the Veteran's lumbar spine disability with respect to the rating criteria. Therefore, the Board finds that the medical evidence is more persuasive than the Veteran's own statements regarding his increased lumbar spine symptomatology. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Extraschedular Consideration An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1) (2012). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The Board finds that the schedular ratings for the Veteran's lumbar spondylosis with spinal stenosis are adequate. Ratings in excess of those assigned are provided for higher levels of severity of his lumbar spine disability, but for certain manifestations which the medical evidence reflects are not present in the Veteran's clinical picture. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's lumbar spine disability. Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required. Thun, 22 Vet. App. at 116. TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). It is the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). As previously noted, service connection for lumbar spondylosis with spinal stenosis was granted in a June 2006 rating decision, notice of which was mailed to the Veteran in July 2006. A 20 percent rating was assigned, effective January 27, 2006, the date the Veteran's claim for service connection was received by VA. In August 2006, he initiated an appeal of the initial 20 percent rating assigned. Although the Veteran did not file an application for increased compensation based upon unemployability (VA Form 21-8940) until April 2007, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran reported that he was unemployable as a result of low back pain at the April 2006 VA examination. Accordingly, the Board concludes that a claim for TDIU was raised in conjunction with the Veteran's claim for an increased initial rating for his lumbar spondylosis with spinal stenosis. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU was denied by the RO in the April 2008 rating decision on the basis that the Veteran was not found unable to secure or follow a substantially gainful occupation due to service-connected disabilities. It was noted that the Veteran did not meet the schedular criteria for TDIU and the RO determined that because the evidence failed to show unemployability due to service-connected disabilities, the case should not be submitted to the Director of Compensation and Pension Service for extraschedular consideration. In a September 2009 statement of the case, the RO continued to deny a TDIU because the Veteran did not meet the schedular requirements needed for entitlement to TDIU. The RO considered an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) but determined that the evidence did not show that the case presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular standards. Thereafter, the Compensation and Pension Director concluded in January 2011 that the Veteran was not unemployed or unemployable due to his service-connected disabilities alone and that TDIU was not warranted under the provisions of 38 C.F.R. § 4.16(b) (2012). The RO continued the denial of a TDIU in a February 2011 supplemental statement of the case. Subsequently, in an October 2012 rating decision, a TDIU was granted, and was made effective on August 31, 2009, the date the RO indicated that the Veteran met the minimum schedular requirements for TDIU. As previously noted, because a TDIU is considered part of the increased initial rating claim, the claim for TDIU was pending prior to August 31, 2009. Although the Veteran did not meet the minimum schedular requirements for a TDIU prior to that date, the Board has the authority to review the determination of the Director of Compensation and Pension Services that a TDIU was not warranted under 38 C.F.R. § 4.16(b) (for the time period prior to August 31, 2009). See Anderson v. Shinseki, 22 Vet. App. 423, 429 (2009) (holding the Board did not exceed its authority when it reviewed a determination by the Director of C&P denying an extraschedular rating under 38 C.F.R. § 3.321(b)). Review of the record reflects that indeed, prior to August 31, 2009; the Veteran did not meet the schedular criteria for TDIU. From the time period beginning when the Veteran sought a higher initial rating for his service-connected lumbar spondylosis with spinal stenosis but prior to August 31, 2009 (the date TDIU was made effective), the Veteran was service-connected for the following disabilities: degenerative disc disease of the cervical spine with scar, rated as 30 percent disabling; diabetes mellitus, type II, rated as 20 percent disabling; lumbar spondylosis with spinal stenosis, rated as 20 percent disabling; radiculopathy of the left upper extremity, rated as 10 percent disabling; and allergic rhinitis, rated as noncompensable. His combined disability rating was 60 percent. In a February 2010 rating decision, service connection was granted for radiculopathy of the right upper extremity. A 20 percent rating was assigned, effective August 31, 2009. This brought the Veteran's combined evaluation for compensation up to 70 percent. Considering the common etiology of the cervical spine and radiculopathy of the bilateral upper extremities, the Veteran met the disability percentage requirements as of August 31, 2009. As such, TDIU was granted effective that date. In summary, prior to August 31, 2009, the Veteran did not meet the disability percentage requirements for consideration under 38 C.F.R. § 4.16(a) and his claim must be considered under the extraschedular requirements in 38 C.F.R. § 4.16(b). Thus the Board must determine whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him during the time period prior to August 31, 2009. A June 2006 lay statement indicates that the Veteran gradually deteriorated in physical health until around January 2004 when he could no longer work. It was noted that he was in constant pain and spent many days in his recliner, which was indicated to be where he could get some pain relief. The October 2007 VA examination report reflects that the Veteran had been unemployed since 2003. It was noted that he used to work in home modifications, the building of homes, and carpentry. The examiner opined that the Veteran's cervical spine prevented him from sitting for long periods of time, especially using a computer for typing because of numbness of the left upper extremity, which was also caused by prolonged driving. It was noted that the Veteran avoided any type of lifting with his left upper extremity and that swinging of the left arm prevented him from ambulating long. Therefore, the examiner concluded that the Veteran's cervical spine disability rendered the Veteran unemployable for sedentary or physical types of occupations. In his VA Form 21-8940, the Veteran indicated that from 1985 to 2003 he was self-employed as a home remodeler. He reported last working in December 2003. He also reported completing two years of college. Based upon the October 2007 VA examiner's opinion that the Veteran's service-connected cervical spine disability rendered him unemployable, the Board finds that a TDIU is warranted for the time period prior to August 31, 2009, on an extraschedular basis. See 38 C.F.R. § 4.16(b) (2012). ORDER Entitlement to an initial rating in excess of 20 percent for lumbar spondylosis with spinal stenosis for the time period prior to December 13, 2011, is denied. Entitlement to an initial rating of 40 percent, but no higher, for lumbar spondylosis with spinal stenosis for the time period beginning on December 13, 2011, is granted, subject to the criteria governing the award of monetary benefits. Entitlement to a TDIU is granted on an extraschedular basis for the time period prior to August 31, 2009, subject to the criteria governing the award of monetary benefits. ______________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs