Citation Nr: 1311072	
Decision Date: 04/03/13    Archive Date: 04/19/13

DOCKET NO.  09-15 289A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for degenerative disc disease of the cervical spine, to include as secondary to the service-connected lumbar spine disability.

2.  Entitlement to service connection for numbness and tingling in the left upper extremity, to include as secondary to the service-connected lumbar spine disability.

3.  Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine.

4.  Entitlement to a rating in excess of 10 percent for left foot neuroma.

5.  Entitlement to a rating in excess of 20 percent for lumbar radiculopathy of the left lower extremity.

6.  Entitlement to an extension of Chapter 30 benefits for surgery on the lumbar spine past October 1, 2008.

7.  Entitlement to a temporary total evaluation for convalescence for a cervical spine surgery.

8.  Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Kenneth Lavan, Attorney at Law


WITNESSES AT HEARING ON APPEAL

The Veteran and K.C.


ATTORNEY FOR THE BOARD

L. Barstow, Counsel


INTRODUCTION

The Veteran had active military service from August 1990 to August 2005 and from November 2005 to February 2006.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008, November 2009 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

In February 2011, the Veteran and K.C. testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.  

The case was remanded in July 2011 to provide the representative with copies of VA examinations and to afford the Veteran VA examinations for his increased rating and TDIU claims.  Review of the record indicates substantial compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Following the Board's remand development, in a January 2012 rating decision, the RO concluded that a 40 percent rating for degenerative disc disease of the lumbar spine and a 20 percent rating for lumbar radiculopathy of the left lower extremity were warranted from the date of the claim.  The United States Court of Appeals for Veterans Claims (Court) has held that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim.  AB v. Brown, 6 Vet. App. 35, 38 (1992).  In this case, the Veteran specifically reported that these increased evaluations did not satisfy his appeal for higher evaluations of his lumbar spine and left lower extremity disabilities.  Thus, the Board concludes that the issues of entitlement to increased ratings for lumbar spine and left lower extremity disabilities remain before the Board.

In March 2012, the Veteran's attorney requested another Travel Board hearing in addition to an informal telephone conference before a decision review officer.  As stated above, the Veteran already presented testimony on these issues in February 2011.  The Board notes that the Veteran is not entitled to another hearing before the Board as a matter of course.  In fact, the language of the applicable statute and regulation state in pertinent part that "[a]n appellant....may request a hearing....." (emphasis added).  38 C.F.R. § 20.703.  The Veteran and his attorney were both present at the time of the February 2011 hearing, where the Veteran fully presented his contentions with regard to the history of his disabilities and the reasons why he felt his claims should be granted.  In addition, the Veteran and his attorney have not stated why the first hearing was insufficient or why another hearing is necessary.  As for the request for a conference before a decision review officer, the RO sent a letter to the Veteran in November 2012 confirming whether such conference was requested.  The Veteran was instructed to confirm whether he desired such conference or else his appeal would be transferred back to the Board.  No response was received.  Accordingly, the Veteran's current request for another hearing is denied.  38 U.S.C.A. § 7107; 38 C.F.R. §§ 20.703, 20.1304 (2012).


FINDINGS OF FACT

1.  Degenerative disc disease of the cervical spine was not present during service, arthritis was not manifest within a year of separation from service, and did not develop as a result of any incident during service and was not caused or aggravated by any service-connected disabilities.

2.  Numbness and tingling in the left upper extremity was not present during service, and did not develop as a result of any incident during service and was not caused or aggravated by any service-connected disabilities.

3.  The degenerative disc disease of the lumbar spine has not resulted in ankylosis or incapacitating episodes, and does not have associated objective neurological abnormalities (other than the already service-connected radiculopathy of the left lower extremity) for which separate ratings can be granted.

4.  The left foot neuroma has not resulted in a moderately severe disability.

5.  The lumbar radiculopathy of the left lower extremity has not resulted in moderately severe incomplete paralysis.

6.  The clinical findings demonstrate that the Veteran did not need continued convalescence following his June 2008 lumbar spine surgery beyond October 1, 2008.

7.  Cervical spine surgery was performed in January 2009, but the Veteran is not service-connected for any cervical spine disability. 

8.  The Veteran is service-connected for degenerative disc disease of the lumbar spine, evaluated as 40 percent disabling; lumbar radiculopathy of the left lower extremity, evaluated as 20 percent disabling; left foot neuroma, evaluated as 10 percent disabling; hearing loss of the left ear, evaluated as noncompensably disabling; and hypertension, evaluated as noncompensably disabling.  The Veteran's combined service-connected disability rating is 60 percent.  

9.  The Veteran was gainfully employed for many years as a financial analyst until 2011; he is also a licensed minister. 

10.  The Veteran's service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational background and occupational experience.


CONCLUSIONS OF LAW

1.  Degenerative disc disease of the cervical spine was not incurred or aggravated in service, and was not proximately due to or the result of a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012).

2.  Numbness and tingling in the left upper extremity was not incurred or aggravated in service, and was not proximately due to or the result of a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012).

3.  The criteria for a rating in excess of 40 percent for a degenerative disc disease of the lumbar spine have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5242, 5243 (2012).
4.  The criteria for a rating in excess of 10 percent for a left foot neuroma have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5279, 5284 (2012).

5.  The criteria for a rating in excess of 20 percent for lumbar radiculopathy of the left lower extremity have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.124a Diagnostic Code (DC) 8520 (2012).

6.  The criteria for an extension of the Veteran's Chapter 30 benefits for surgery on the lumbar spine past October 1, 2008, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2012).

7.  The criteria for a temporary total evaluation for convalescence for a cervical spine surgery have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2012).

8.  The criteria for an award of a TDIU have not been met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice must inform the claimant of any information and 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

The Veteran was notified in letters dated in October 2008 (extension of Chapter 30 benefits), February 2009 (temporary total valuation for cervical spine surgery and lumbar spine increase), April 2009 (temporary total evaluation, service connection for cervical spine and lumbar spine increase), October 2009 (temporary total evaluation, both service connection issues and lumbar spine increase) and January 2010 (left foot and left lower extremity increases) regarding the type of evidence necessary to establish his claims.  He was instructed that to show entitlement to increased evaluations for his service-connected disabilities, the evidence must show that the disabilities have gotten worse.  He was also instructed how to establish service connection on both direct and secondary bases.  The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The letters also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In addition, the letters informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  

The Board acknowledges that none of the VCAA letters discussed the criteria for an award of a TDIU.  The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication.  See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  Under Sanders, VA bore the burden of proving that such an error did not cause harm.  Id. 

However, in the case Shinseki v. Sanders, 129 S.Ct. 1696  (2009), the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA.  Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis.  Id.  As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant.

In this case, the Veteran has been represented throughout this appeal by his attorney.  His contentions, as well as his representative's arguments, have demonstrated that the Veteran has actual knowledge of the criteria necessary for an award of a TDIU.  Due to the Veteran's full participation in this appeal, the Board concludes that he was not prejudiced by any failure in providing him VCAA notification regarding how to establish entitlement to a TDIU.  

Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records and also secured examinations in furtherance of his increased rating and TDIU claims.  Pertinent VA examinations were obtained in February 2009 (lumbar spine), January 2010 (left foot and left lower extremity), April 2010 (lumbar spine), November 2011 (lumbar spine, left foot, left lower extremity and TDIU) and December 2011 (TDIU).  38 C.F.R. § 3.159(c)(4).  The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders.  The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the increased rating and TDIU issues adjudicated herein has been met.  38 C.F.R. § 3.159(c)(4). 

In finding that VA's duty to assist with respect to obtaining VA examinations has been met, the Board acknowledges that examinations as to the service connection issues were not obtained.  Regarding service connection on a direct basis, opinions are not required because opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains:  1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, as described in detail below, there is insufficient evidence establishing that the Veteran suffered an in-service event, injury or disease in service, or during any pertinent presumptive period.  See Duenas v. Principi, 18 Vet. App. 512 (2004).  Furthermore, sufficient competent medical evidence is of record to decide the claim.  Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet.

Regarding service connection on a secondary basis, the evidence fails to show a competent medical opinion supported by a rationale that the Veteran's cervical spine and left upper extremity disorders are secondary to his service-connected lumbar spine disability.  Although a March 2011 medical questionnaire indicates that the Veteran's cervical spine disability was at least possibly related to a service-connected disability, this opinion did not provide any rationale.  As discussed in detail below, the Board finds that such opinion lacks probative value and is therefore, not competent evidence.  Therefore, the Board concludes VA is not required to obtain a medical opinion with respect to these issues because the record does not contain any competent evidence that those disorders may be associated with a service connected disability.  Waters v. Shinseki, 601 F.3d 1274, 1278-1279 (Fed. Cir. 2010).  The Waters Court noted that since all Veterans could make bare assertions that a service connected illness caused their current medical problems requiring examinations in such cases "would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case."  Id. at 1278.  The Federal Circuit "expressly rejected" the "theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues."  Id. at 1278-1279.

VA has no duty to inform or assist that was unmet.  The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder.  

The Veteran was also provided with a hearing related to his present claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, the VLJ explained the issues on appeal, but did not note the specific criteria necessary to substantiate the claims or suggest the submission of any additional evidence.  This was not necessary, however, because the Veteran volunteered his treatment history and current symptoms, thus fully describing the nature and severity of his lumbar spine, left foot and left lower extremity disorders as well as their impact on his employability.  The Veteran also fully described why he believed service connection was warranted for his cervical spine and left upper extremity.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

II.  Analysis

      A.  Service Connection

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

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (1995).  

Certain chronic diseases (e.g., arthritis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service.  38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012).  

Furthermore, any disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition.  38 C.F.R. § 3.310(a).  Additionally, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310(b).

Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

		1.  Cervical Spine

The Veteran contends that he has degenerative disc disease of the cervical spine that is either directly related to his military service or is secondary to his service-connected degenerative disc disease of the lumbar spine.  See, e.g., June 2010 statement.

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's degenerative disc disease of the cervical spine became manifest or otherwise originated during his period of service or within one year of service separation or is otherwise related to his military service, to include being secondary to his service-connected degenerative disc disease of the lumbar spine.

Regarding service connection on a direct basis, there is no finding that degenerative disc disease of the cervical spine was treated or diagnosed during service.  The Veteran's entrance examination in January 1989 and retention examination in May 2004 both revealed a clinically normal neck.  The May 2004 examination revealed a clinically abnormal spine; the Veteran's lumbar spine disability was noted.  No reports regarding a cervical spine disorder were made.  Additionally, examinations in July 1994 and November 2001 also revealed a clinically normal neck.  In May 2004 and July 2005 reports of medical examination, he denied symptoms such as any need to use corrective devices; bone, joint or other deformity; swollen or painful joints; and arthritis, rheumatism or bursitis.  The Veteran reported having recurrent back pain in both reports; however, back pain, as opposed to neck or cervical spine pain was reported.  While the Veteran's STRs show treatment for his lumbar spine disability, there is no indication in any of his STRs that he was treated for symptoms associated with the currently diagnosed degenerative disc disease of the cervical spine.  There is also no indication of a diagnosis of degenerative disc disease of the cervical spine in his STRs.  The Veteran's contemporaneous service records fail to show that the onset of degenerative disc disease of the cervical spine occurred during service.  

The totality of the evidence fails to show that the onset of any current degenerative disc disease of the cervical spine occurred during the Veteran's service.  In reaching this conclusion, the Board acknowledges the Veteran's reports of having two motor vehicle accidents in service, one in November 2000 and the second in the winter of 2005, in which he injured his cervical spine.  See June 2010 statement.  Throughout this appeal, the Veteran has asserted that he had cervical spine complaints in service.  However, the Board finds that the Veteran lacks credibility in his assertions of the onset of cervical spine complaints in service.  Credibility is an adjudicative, not a medical determination.  The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997).
In this case, the Veteran has been inconsistent.  The Veteran has reported having cervical spine pain in service.  See, e.g., June 2010 statement.  However, in an August 2008 treatment record, the Veteran reported radicular pain in his left upper extremity that began after his June 2008 lumbar surgery.  Contrary to his assertions of having cervical spine pain in service, he denied a history of neck problems prior to that surgery.  In December 2008, the Veteran again reported that his intermittent neck pain began just after his lumbar surgery in June 2008.  The Veteran's post-service treatment records pertaining to his cervical spine are devoid of him reporting that the onset of his complaints began during service.  No explanation for the inconsistency in the onset of his cervical spine complaints has been provided.

The Veteran has also been inconsistent with regards to whether or not he sought treatment in service.  In a March 2009 statement, the Veteran reported that he was not treated for this condition until his pain and symptoms became too severe to ignore after his June 2008 lumbar spine surgery.  In his June 2010 statement, he denied seeking treatment in service as he felt that he was not injured enough to do so.  However, at his February 2011 hearing, the Veteran's representative indicated that the Veteran complained to a doctor in service and those records could not be found.  See February 2011 Hearing Transcript (T.) at 21.  In fact, regarding the records showing neck complaints in service, the representative indicated that "we're not sure if they exist or not..."  Id.  The representative expressed certainty that the Veteran knew that he complained about his cervical spine in service.  Id.  As already noted above, the Veteran's STRs do not show complaints of neck pain in service.  The Veteran has not explained why he contradicted himself by reporting both that he did not seek treatment in service and that he did complain about his neck in service.  

Furthermore, as regards the alleged motor vehicle accidents, in his initial claim in February 2009, no specific mention was made of those accidents.  His claim indicates that the Veteran experienced several injuries to his cervical spine in service; the specifics as to those injuries were not provided.  The December 2009 notice of disagreement did not mention any motor vehicle accidents.  The first report of having those accidents was in the Veteran's June 2010 statement in which he indicated that "I now remember" that he had two accidents while on active duty.  No explanation as for the Veteran's sudden memory of those accidents has been provided.  There is no indication in the Veteran's STRs that those accidents happened.  As noted above, a July 2005 report of medical examination does not show any cervical spine complaints.  Disabilities such as hyperlipidemia, hypertension, hearing loss, sycosis barbae, bulging disc (L3-L4) and also L4-5-S1 and acne were reported, but no complaints pertaining to the cervical spine were made, nor was any mention made of two motor vehicle accidents.  

In light of the Veteran's inconsistencies with regards to this disability, the Board finds that the contemporaneous service records are more reliable than the Veteran's unsupported assertion of these events made in connection with his claim for benefits.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); see also Curry v. Brown, 7 Vet. App. 59, 68  (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran).  As such, the Board concludes that the evidence does not support a finding that the onset of degenerative disc disease of the cervical spine began in service.  

To the extent that a private March 2011 examiner opined that the Veteran's degenerative disc disease of the cervical spine was related to his service, the examiner noted the Veteran's claim of two in-service motor vehicle accidents sustaining trauma to his neck, but did observe that there were no military records to support the Veteran's claim.  As the Board concludes that the Veteran is not credible as to his assertions of in-service cervical spine injuries, the Board finds that a medical opinion premised on those assertions lacks probative value.  See Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet.App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two).  Any other medical opinions of record relating the Veteran's degenerative disc disease of the cervical spine to his military service based on his assertions likewise lack probative value.

There is also no medical evidence of the manifestation of arthritis within a year of separation of service.  The earliest indication of symptoms associated with degenerative disc disease of the cervical spine is when the Veteran made left upper extremity complaints in June 2008.  Subsequently, the Veteran was found to have cervical myelopathy and degenerative disc disease.  See January 2009 surgery operation report.  No medical professional has provided any opinion indicating that arthritis was manifest to a degree of 10 percent or more within one year from the Veteran's discharge from service.  

The pertinent medical evidence that has been presented shows a current diagnosis of degenerative disc disease of the cervical spine; however, the evidence does not contain competent and probative medical opinions relating any currently diagnosed degenerative disc disease of the cervical spine to the Veteran's military service.  For the reasons set forth above, the March 2011 private medical opinion lacks probative value as it was premised upon the Veteran's reported history, which the Board has found lacks credibility.  While service connection questionnaires filled out by a VA physician in March 2009 and March 2011 indicates that the Veteran's disability was as likely as not related to his service and was at least possibly related to service, respectively, no rationale for these opinions was provided.  As such, they lack probative value.  

The probative medical evidence simply fails to adequately establish any nexus between current degenerative disc disease of the cervical spine and the Veteran's periods of service.  No medical professional has provided any probative opinion supported by a rationale indicating that any currently diagnosed degenerative disc disease of the cervical spine is related to the Veteran's military service.  Without competent evidence of an association between degenerative disc disease of the cervical spine and his active duty, service connection for degenerative disc disease of the cervical spine is not warranted on a direct basis.

The evidence also fails to show that service connection is warranted on a secondary basis.  The March 2011 service connection questionnaire filled out by a VA physician indicates that it was at least possible that the Veteran's degenerative disc disease of the cervical spine was secondary to his lumbar spine disability.  Again, no rationale was provided for this opinion.  Although the Veteran's pertinent treatment records show that he reported symptomatology starting after his lumbar spine surgery, as the Veteran has also reported that the onset of his symptoms was in service, the Board finds his assertions indicating that his lumbar spine disability caused his cervical spine disability are not credible and therefore, lack probative value.  To the extent that the Veteran's assertions indicate that his lumbar spine disability aggravates his degenerative disc disease of the cervical spine, no medical professional has provided any probative opinion supported by a rationale as to that matter.  A review of the Veteran's copious VA treatment records pertaining to both his lumbar spine and his cervical spine fail to show that the lumbar spine disability aggravates the degenerative disc disease of the cervical spine such that service connection on a secondary basis is warranted.  Furthermore, the competent medical evidence of record fails to establish a baseline level of severity of the nonservice-connected degenerative disc disease of the cervical spine before the onset of any contended aggravation.  As such, service connection on an aggravation basis is not warranted.

The probative medical evidence simply fails to adequately establish any nexus between current degenerative disc disease of the cervical spine and the Veteran's service-connected lumbar spine disability.  No medical professional has provided any probative opinion supported by a rationale indicating that any currently diagnosed degenerative disc disease of the cervical spine is caused or aggravated by the service-connected lumbar spine disability.  Without competent evidence of an association between degenerative disc disease of the cervical spine and the service-connected lumbar spine disability, service connection for degenerative disc disease of the cervical spine is not warranted on a secondary basis.

Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of degenerative disc disease falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer).  As such, his own assertions as to etiology have no probative value.

Without evidence of the onset of degenerative disc disease of the cervical in service or competent evidence of an association between degenerative disc disease of the cervical spine and the Veteran's active duty or a service-connected disability, service connection for degenerative disc disease of the cervical spine is not warranted.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for degenerative disc disease of the cervical spine on direct, presumptive and secondary bases.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for degenerative disc disease of the cervical spine is denied.  See 38 U.S.C.A §5107 (West 2002 & Supp. 2012).

		2.  Left Upper Extremity

The Veteran contends that he has numbness and tingling in the left upper extremity that is related to his military service, to include being secondary to a service-connected disability.  See, e.g., June 2010 statement.  

The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's numbness and tingling in the left upper extremity became manifest or otherwise originated during his period of service or is otherwise related to his military service, to include being secondary to his service-connected degenerative disc disease of the lumbar spine.

Regarding service connection on a direct basis, there is no finding that numbness and tingling in the left upper extremity was treated or diagnosed during service.  The Veteran's entrance examination in January 1989 and retention examination in May 2004 both revealed clinically normal upper extremities.  Additionally, examinations in July 1994 and November 2001 also revealed clinically normal upper extremities.  In May 2004 and July 2005 reports of medical examination, he denied symptoms such as any need to use corrective devices; swollen or painful joints; bone, joint or other deformity; arthritis, rheumatism or bursitis; and painful shoulder, elbow or wrist.  He also denied the impaired use arms and hands in May 2004.  The Veteran reported having numbness and tingling in both reports; however, such complaints were related to his service-connected left lower extremity.  While the Veteran's STRs show treatment for his lumbar spine and left lower extremity disabilities, there is no indication in any of his STRs that he was treated for symptoms associated with the currently reported numbness and tingling in the left upper extremity.  There is also no indication of a diagnosis of a left upper extremity disorder in his STRs.  The Veteran's contemporaneous service records fail to show that the onset of the Veteran's left upper extremity complaints occurred during service.  

The totality of the evidence fails to show that the onset of any current left upper extremity complaints occurred during the Veteran's service.  In reaching this conclusion, the Board acknowledges the Veteran's reports of in-service symptoms.  However, as discussed thoroughly above, the Board finds the Veteran's assertions as the onset of his symptoms in service lack credibility.  As with his cervical spine, although he reported having numbness and tingling in service, see, e.g., June 2010 statement, his service records are devoid of any such complaints.  Furthermore, in August 2008 and December 2008, the Veteran reported that the onset of his symptoms began after his lumbar spine surgery.  The Veteran has been inconsistent as to both the onset of his cervical spine and left upper extremity complaints.  As the Board doubts the Veteran's credibility in reporting in-service symptomatology, the Board finds that the contemporaneous service records are more reliable than the Veteran's unsupported assertion of the onset of his symptoms.  See Cartright at 25; see also Curry at 68.  As such, the Board concludes that the evidence does not support a finding that the onset of numbness and tingling in the left upper extremity began in service.

To the extent that a private March 2011 examiner opined that the Veteran's numbness and tingling in the left upper extremity was related to his service, the examiner related the Veteran's complaints to cervical radiculopathy.  For the reasons set forth above, the Board finds that service connection for degenerative disc disease of the cervical spine is not warranted.  

In this case, no left upper extremity disability other than cervical spine radiculitis diagnosed in November 2008 and cervical spine radiculopathy diagnosed in March 2011 have been shown.  The pertinent medical evidence that has been presented shows that the Veteran's current left upper extremity complaints of numbness and weakness are associated with his degenerative disc disease of the cervical spine.  The evidence does not contain competent and probative medical opinions relating any current left upper extremity complaints to a disability other than cervical spine radiculitis and radiculopathy or that any other disability is directly related to the Veteran's military service.  

The probative medical evidence simply fails to adequately establish any nexus between current numbness and weakness in the left upper extremity and the Veteran's periods of service.  No medical professional has provided any probative opinion indicating that any current numbness and weakness in the left upper extremity is related to the Veteran's military service.  Without competent evidence of an association between numbness and weakness in the left upper extremity and his active duty, service connection for numbness and weakness in the left upper extremity is not warranted on a direct basis.

The evidence also fails to show that service connection is warranted on a secondary basis.  In this regard, the report of a November 2008 electromyograph (EMG) indicates that there was no evidence of cervical radiculopathy.  The Veteran's complaints were opined to be consistent with superficial radial sensory neuropathy possibly iatrogenic from restraining during lumbar surgery.  However, subsequent treatment records as noted above show diagnoses of cervical spine radiculitis and radiculopathy.  The pertinent evidence of record does not show that the Veteran's left upper extremity complaints are either caused or aggravated by his lumbar spine disability.  No medical professional has provided any such opinions supported by a rationale.  Furthermore, the competent medical evidence of record fails to establish a baseline level of severity of the nonservice-connected numbness and weakness in the left upper extremity before the onset of any reported aggravation.  As such, aggravation has not been shown such that service connection would be warranted.

The probative medical evidence simply fails to adequately establish any nexus between current numbness and weakness in the left upper extremity and the Veteran's service-connected lumbar spine disability.  No medical professional has provided any probative opinion supported by a rationale indicating that any currently diagnosed numbness and weakness in the left upper extremity is caused or aggravated by the service-connected lumbar spine disability.  Rather, as already discussed above, the Veteran's complaints have been associated with his degenerative disc disease of the cervical spine, for which service connection is not warranted.  Without competent evidence of an association between numbness and weakness in the left upper extremity and the service-connected lumbar spine disability, service connection for numbness and weakness in the left upper extremity is not warranted on a secondary basis.

Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of numbness and weakness in the left upper extremity falls outside the realm of common knowledge of a lay person.  See Jandreau at 1377 n.4.  As such, his own assertions as to etiology have no probative value.

Without evidence of the onset of numbness and tingling in the left upper extremity in service or competent evidence of an association between numbness and tingling in the left upper extremity and the Veteran's active duty or a service-connected disability, service connection for numbness and tingling in the left upper extremity is not warranted.  Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for numbness and tingling in the left upper extremity on direct and secondary bases.  As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for numbness and tingling in the left upper extremity is denied.  See 38 U.S.C.A §5107.

      
B.  Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.  Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App 505 (2007).  As discussed in detail below, the Board concludes that staged ratings are not warranted.

		1.  Lumbar Spine

In this case, the Veteran has been diagnosed with degenerative disc disease of the lumbar spine.  This disability has been shown to cause limitation of motion of the lumbar spine.  This service-connected disability is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a, DC 5242, which evaluates impairment from degenerative arthritis of the spine.  

Since September 23, 2003, DCs 5235-5243 are rated under the General Rating Formula for Diseases and Injuries of the Spine.  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.  

Under the General Rating Formula, a 40 percent evaluation is for application when forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, DC 5242 (2012).  A 50 percent evaluation is for application when there is unfavorable ankylosis of the entire thoracolumbar spine.  Id.  A 100 percent evaluation is for application when there is unfavorable ankylosis of the entire spine.  Id.

Note (1), which follows the rating criteria, provides for the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  Id.

Intervertebral disc syndrome (IVDS) is evaluated under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  Id.

Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent rating is warranted for IVDS (preoperatively or postoperatively) when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243.  A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  Id.  

Note (1), which follows the rating criteria, indicates that for purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Id.
Based on the evidence of record, the Board concludes that a rating in excess of 40 percent is not warranted at any time during this appeal period.  The pertinent evidence of record fails to show that the Veteran's lumbar spine range of motion has approximated unfavorable ankylosis of the entire thoracolumbar spine, which would warrant the next higher rating of 50 percent.

In this case, the Veteran's forward flexion has been shown to be no worse than 10 degrees at a private March 2011 examination.  VA examinations in February 2009, April 2010 and November 2011 revealed flexion of 35 degrees, 20 degrees and 30 degrees due to pain, respectively.  The February 2009 and April 2010 VA examiners specifically found that the Veteran did not have additional limitations due to pain, fatigue, weakness or lack of endurance following repetitive use.  The November 2011 examiner opined that the Veteran had no additional limitation following repetitive use, but did have functional loss and/or functional impairment.  The Veteran had less movement than normal, weakened movement and pain on movement.  No medical professional has indicated that the Veteran's decreased motion approximated unfavorable ankylosis of the entire thoracolumbar spine.  

None of the Veteran's pertinent treatment records, private examinations, VA examinations or his contentions, indicate that he has unfavorable ankylosis of the entire thoracolumbar spine.  Thus, the evidence does not indicate that a rating in excess of 40 percent based on limitation of motion is warranted at any time during this appeal.  

In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted.  Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating for limitation of motion is not warranted.  See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like).  Although the November 2011 examiner indicated that the Veteran had functional impairment, the Veteran was still able to forward flex to 30 degrees with pain at that time.  None of the examinations or treatment records shows that the Veteran had muscle atrophy of his lumbar spine.  All of the VA examination reports reflect that the Veteran's pain on motion and the functional loss it resulted in were taken into account.  Accordingly, the criteria for a rating in excess of 40 percent for limitation of motion for the Veteran's service-connected degenerative disc disease of the lumbar spine have not been met.  38 C.F.R. § 4.71a, DC 5242.

The evidence also does not show associated neurologic abnormalities other than the already service-connected radiculopathy of the left lower extremity for which separate ratings may be warranted.  The Veteran denied bowel or bladder complaints at the February 2009 and April 2010 VA examinations.  He also denied erectile dysfunction at the April 2010 VA examination.  The private March 2011 examination report reveals that the Veteran denied all genitourinary (GU) symptoms.  The November 2011 examiner specifically found that the Veteran did not have any other neurologic abnormalities or findings related to the lumbar spine condition besides the left lower extremity radiculopathy.  Although the Veteran testified having erectile dysfunction after his second lumbar spine surgery, see T. at 19-20, no medical professional has provided any opinion indicating that the Veteran has erectile dysfunction related to his lumbar spine.  The Veteran has also reported having painful bowel movements and urination.  See June 2010 statement.  However, he specifically denied having GU symptoms in March 2011 and the November 2011 examiner opined that the Veteran did not have neurologic abnormalities.

Based on the evidence of record, the Board concludes that associated objective neurologic abnormalities other than the radiculopathy of the left lower extremity for which a separate rating can be granted have not been shown.  In this case, the pertinent medical evidence of record fails to show any other objective neurologic abnormalities.  Therefore, the Board concludes that separate ratings for associated neurologic abnormalities are not warranted.

The evidence also does not show that a rating in excess of 40 percent for IVDS based on incapacitating episodes is warranted.  The Board acknowledges that the March 2011 private examiner indicated that a 60 percent rating is warranted for IVDS.  The examiner noted that the Veteran reported having incapacitating episodes twice a week lasting two days with the inability to do most activities of daily living with a pain scale of eight to nine out of ten (8-9/10).  However, a review of the Veteran's pertinent treatment records as well as his contentions throughout this appeal have not shown incapacitating episodes as defined by VA.  There is no indication that the Veteran required bed rest prescribed by a physician and treatment by a physician.  As such, a rating in excess of 40 percent for incapacitating episodes is not warranted.

Lastly, the Board observes that the Veteran has scarring of his lumbar spine resulting from multiple surgeries.  However, a separate compensable rating for the Veteran's scars is not warranted as none of the examinations or treatment records have shown that they are deep, nonlinear and cover areas of at least six square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); are superficial, nonlinear and cover areas of 144 square inches (929 sq. cm.) or greater; are unstable or painful; or cause other disabling affects.  38 C.F.R. § 4.118, DCs 7801, 7802, 7804, 7805 (2012).  Consequently, a separate rating for scarring is not warranted.

For these reasons, the Board finds that the criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine have not been met.

		2.  Left Foot

In this case, the Veteran has been diagnosed with a left foot neuroma.  This disability has been shown to cause left foot pain.  This service-connected disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5279, which evaluates impairment from anterior metatarsalgia (Morton's disease), unilateral or bilateral.  

The Board observes that the only rating assignable under DC 5279 is the currently assigned 10 percent rating.  38 C.F.R. § 4.71a, DC 5279 (2012).  Consequently, the Board will consider whether an increased rating is warranted under any of the other diagnostic codes used to rate foot disabilities.  

As acquired flatfoot has not been shown, a rating under DC 5276 is not warranted.  The only rating available under DC 5277 for bilateral weakfoot is 10 percent and the Veteran has not been shown to have weakfoot.  DC 5278 is not for application as the evidence also fails to show acquired claw foot (pes cavus).  The only ratings available under DCs 5280 and 5281 are 10 percent and the Veteran does not have hallux valgus or hallux rigidus.  The Veteran does not have hammer toe and the highest rating available for that disability is only 10 percent under DC 5282.  The evidence also does not show that the Veteran has malunion or nonunion of the tarsal or metatarsal bones, so a higher rating under DC 5283 is not warranted.  38 C.F.R. § 4.71a, DCs 5276, 5277, 5278, 5280, 5281, 5282, 5283 (2012).

Pursuant to DC 5284, which evaluates impairment of other foot injuries, a 10 percent rating is warranted for moderate disability.  38 C.F.R. § 4.71a, DC 5284 (2012).  A 20 percent rating is warranted for moderately severe disability.  Id.  A 30 percent rating is warranted for severe disability.  Id.  Actual loss of use of the foot warrants a 40 percent rating.  Id.

Based on the evidence of record, the Board concludes that a rating in excess of 10 percent is not warranted at any time during this appeal period.  The pertinent evidence of record fails to show that the Veteran's left foot disability is best characterized as moderately severe.  

Initially, the Board observes that some of the Veteran's complaints have been attributed to neuropathy associated with his lumbar spine.  See, e.g., November 2009 and August 2010 podiatry notes.  To the extent that the Veteran's complaints are associated with his radiculopathy of the left lower extremity, such will be discussed below in adjudicating the increased rating claim for that issue.  In reviewing the Veteran's left foot neuroma, the Board will focus on findings associated with the neuroma.

Throughout this appeal, the Veteran's pertinent treatment records reflect his continuous complaints of pain, numbness and tingling, as well as the use of orthotics.  A VA examination in January 2010 fails to show that the Veteran's neuroma equates to moderately severe disability.  The Veteran reported pain two to three times a week.  He used custom inserts that no longer helped; no cane or crutches were used.  A topical cream was used without significant relief.  He was unable to walk more than ten minutes, both at work and with activities of daily living.  He had flare-ups once or twice a month for several hours during which he had to avoid weight bearing.  Examination revealed a 0.5 centimeter tender to palpation neuroma.  He had no calluses, edema or pain on manipulation of the feet.  The Veteran walked with no limp.  No pain on range of motion was found.  There were no additional limitations by pain, fatigue, weakness or lack of endurance following repetitive use.  The findings on this examination fail to show that the Veteran's left foot neuroma is best characterized as being moderately severe.  Considering that the Veteran did not have pain on manipulation, the Board is unable to conclude that his left foot neuroma equated to moderately severe disability.

The report of a private medical examination in March 2011 shows that the examiner agreed with the 10 percent rating assigned to the Veteran's left foot neuroma.  The examiner indicated that the neuroma was associated with pain on standing and walking.  The only foot disability diagnosed at a VA foot examination in November 2011 was Morton's neuroma.  The Veteran reported using orthotic inserts, but he still had pain when standing for ten minutes and walking about 100 yards.  Pain medications for his back also helped the foot.  The examiner opined that the Veteran did not have other foot injuries.  Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran.  The March 2011 and November 2011 examinations also fail to show that the Veteran's neuroma is moderately severe.  Although he had pain with standing and walking, examination findings fail to show that his disability warrants a rating in excess of 10 percent.  Indeed, the private examiner agreed that the currently assigned 10 percent rating was warranted; such opinion was premised on an examination of the Veteran's left foot.  

The Board acknowledges that "moderately severe" is not defined in the rating criteria.  However, a review of what warrants an increased rating of 20 percent for foot disabilities under other diagnostic codes is particularly instructive.  For a 20 percent rating for unilateral flatfoot, the disability must be severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use and characteristic callosities.  A 20 percent rating for unilateral acquired claw foot requires that all toes tend to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia and marked tenderness under metatarsal heads.  38 C.F.R. § 4.71a, DCs 5276, 5278.  

The pertinent medical findings shown throughout the treatment records as well as at VA and private examinations indicates that the Veteran does not have symptoms such as that contemplated for by a 20 percent rating under DCs 5276 and 5278.  In other words, although "moderately severe" is not defined, as the Veteran's left foot neuroma has not caused symptoms that would warrant a higher rating under diagnostic codes that list symptoms indicative of 20 percent ratings, the Board concludes that a rating in excess of 10 percent rating is not warranted.

In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted.  Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating for moderately severe disability based on limitation of motion is not warranted.  See 38 C.F.R. § 4.40.  None of the VA examiners or private examiner indicated that the Veteran had functional impairment.  Also, none of the examinations or treatment records shows that the Veteran had muscle atrophy of his left foot.  Accordingly, the criteria for a rating in excess of 10 percent due to moderately severe disability have not been met.  38 C.F.R. § 4.71a, DC 5284.

For these reasons, the Board finds that the criteria for a rating in excess of 10 percent for left foot neuroma have not been met.

		3.  Left Lower Extremity

In this case, the Veteran has been diagnosed with lumbar radiculopathy of the left lower extremity.  This disability has been shown to cause left lower extremity pain and other symptoms.  This service-connected disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.124a, DC 8520, which evaluates impairment from paralysis of the sciatic nerve.  

Specifically, pursuant to DC 8520, a 20 percent evaluation is warranted for moderate incomplete paralysis.  38 C.F.R. § 4. 124a, DC 8520 (2012).  A 40 percent evaluation is warranted for moderately severe incomplete paralysis.  Id.  A 60 percent evaluation is warranted for severe incomplete paralysis with marked muscular atrophy.  Id.  An 80 percent evaluation is warranted for complete paralysis consisting of the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  Id.

A note accompanying the rating criteria says, in part, that the term "incomplete paralysis," with this and other peripheral nerve injuries, 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 wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.

Based on the evidence of record, the Board concludes that a rating in excess of 20 percent is not warranted at any time during this appeal period.  The pertinent evidence of record fails to show that the Veteran's left lower extremity disability is best characterized as moderately severe incomplete paralysis.  

The Veteran's pertinent treatment records during this appeal period confirm his repeated complaints of continuous pain, numbness, weakness and tingling in his left lower extremity.  At the February 2009 VA examination for his lumbar spine, the Veteran was shown to have negative straight leg raise testing.  Motor strength was 5/5 and deep tendon reflexes were 2+.  There was no atrophy in the lower extremities.  The Veteran had decreased sensation in the left lateral thigh.  Considering that the Veteran had full motor strength, normal reflexes and no atrophy, the Board is unable to conclude that the Veteran's left lower extremity disability equates to moderately severe incomplete paralysis based on the results of this examination.

An EMG consultation in November 2009 shows that the Veteran had normal muscle bulk and tone; grossly normal motor examination; and trace and symmetric muscle stretch reflexes.  The EMG was opined to be normal.  As this examination was essentially normal, the Board finds that this record fails to show moderately severe incomplete paralysis.  

A VA examination in January 2010 also fails to show that this disability is best characterized as moderately severe incomplete paralysis.  He reported daily pain with numbness and weakness.  The Veteran denied using assistive devices.  His activities of daily living were restricted in that he was unable to walk more than 15 minutes, stand for 10 minutes, do household chores or cut his grass.  He had difficulty with stairs.  At work, he was unable to sit for more than 10 minutes and stand or walk for more than 15 minutes.  He had flare-ups three or four times a month for one to two days during which he had decreased concentration and decreased ability to sit or stand and was unable to lie on his left side.  Examination revealed left knee deep tendon reflexes of 3+.  Motor strength was 5/5.  He had some atrophy about 1.5 centimeters versus the right.  Straight leg raise testing was positive.  The Veteran had no pain on range of motion and joint motion was not additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use.  Although the Veteran did have some atrophy, the fact that he has full muscle strength of 5/5 weighs against a finding of moderately severe incomplete paralysis, even when taking into account the Veteran's functional limitations.  

The results of the April 2010 VA examination for the Veteran's spine indicate that the Veteran's radiculopathy of the left lower extremity does not equate to moderately severe incomplete paralysis.  At that examination, the Veteran reported that activities of daily living were restricted in that he could not walk or stand for more than 10 minutes or sit for more than five minutes.  He was unable to do household chores and cut his grass.  He had difficulty with stairs.  At work, he could not sit for more than 10 minutes or stand or walk for more than 15 minutes.  He had flare-ups once a day for one to two hours during which he was unable to concentrate, had general decreased ability to sit and stand and was unable to lie on his left side.  Examination revealed positive straight leg raising, 3+ deep tendon reflexes, 5/5 motor strength and lower sensation.  There was some atrophy versus the right, but normal tone.  Although the Veteran's deep tendon reflexes were not normal and there was some atrophy, as the Veteran had normal motor strength and tone, the Board concludes that the results of this examination show that the Veteran's lower left extremity disability is best characterized as moderate incomplete paralysis, which warrants the assigned 20 percent rating as opposed to moderately severe incomplete paralysis for a higher 40 percent rating.

The March 2011 private examination also does not show moderately severe incomplete paralysis.  The Veteran reported pain, numbness and tingling.  Examination revealed motor strength of 5/5.  Sensation was decreased to brush and pinpricks.  Monofilament test was decreased.  There was normal proprioception.  All reflexes were 2+ except trace patella and achilles bilaterally.  There were no pathological reflexes.  Rhomberg was normal; gait was antalgic; tandem gait was unsteady; and he was able to stand on heels and toes.  As with previous examinations, considering the Veteran's normal strength, the Board concludes that the findings in March 2011 are not consistent with moderately severe incomplete paralysis.  

The November 2011 VA examination for his spine likewise does not show that his left leg disability equated to moderately severe incomplete paralysis.  He was shown to have normal hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension muscle strength of 5/5.  There was no muscle atrophy.  The Veteran had normal deep tendon reflexes of 2+ for his knee and ankle.  He had decreased sensation to light touch of his upper anterior thigh, thigh/knee, lower leg/ankle and foot/toes.  Straight leg raising was negative.  The examiner opined that the Veteran had radicular pain or other signs or symptoms due to radiculopathy in the left lower extremity.  Constant pain was opined to be moderate and there was no intermittent pain.  He has moderate paresthesias and/or dysesthesias and moderate numbness.  These examination results, consistent with previous examination reports, also show that the Veteran's lumbar radiculopathy of the left lower extremity does not equate to moderately severe incomplete paralysis.  Since the Veteran had full motor strength, no atrophy, normal deep tendon reflexes, and as the examiner opined that the Veteran's pain, paresthesias and/or dysesthesias and numbness were moderate, the evidence fails to show moderately severe incomplete paralysis.  

None of the Veteran's pertinent treatment records, private examinations, VA examinations or his contentions, indicate that his left lower extremity disability is tantamount to moderately severe incomplete paralysis.  As discussed above, even with his reported symptoms, the Veteran has been shown to have full strength throughout this appeal.  Although not every examination report reflects normal reflexes, the totality of the evidence fails to show that the currently assigned 20 percent rating for moderate incomplete paralysis does not adequately compensate the Veteran for his complaints.  Thus, the evidence does not indicate that a rating in excess of 20 percent is warranted at any time during this appeal.  

In reaching this conclusion, the Board has considered whether the Veteran's reports of constant pain, numbness, and weakness, in addition to his reported falls, indicate that his disability is better characterized as moderately severe incomplete paralysis.  Here, even when taking into account the Veteran's reported symptoms as well as functional limitations, the Board finds that an increased rating is not warranted.  See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like).  Although the January 2010 and April 2010 examiners indicated that the Veteran had some atrophy, he still had normal strength of 5/5.  Moreover, no atrophy was shown in November 2011 or on other examinations.  All of the VA examination reports reflect that the Veteran's symptoms and the functional loss they resulted in were taken into account.  Accordingly, the criteria for a rating in excess of 20 percent for moderately severe incomplete paralysis for the Veteran's service-connected lumbar radiculopathy of the left lower extremity have not been met.  38 C.F.R. § 4.124a, DC 8520.

For these reasons, the Board finds that the criteria for a rating in excess of 20 percent for lumbar radiculopathy of the left lower extremity have not been met.
      
4.  Extraschedular Consideration

Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability.  38 C.F.R. § 4.1.  The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder.  38 C.F.R. § 3.321(b).  However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's lumbar spine, left foot and left lower extremity symptoms and disability level.  Marked interference with employment beyond that contemplated by the schedular criteria has not been shown.  Although the record does show that the Veteran missed work and required special accommodations for his disabilities, the combined rating of 60 percent for these three disabilities alone shows that the schedular criteria adequately compensate the Veteran for any effect these disabilities may have on his employment.  The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disabilities.  The evidence does not show that the Veteran's lumbar spine, left foot and left lower extremity disabilities have resulted in interference with employment or activities of daily life which would warrant ratings in excess of 40 percent, 10 percent and 20 percent, respectively, for these disabilities.

	C.  Extension of Chapter 30 Benefits

Under 38 C.F.R. § 4.30, a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more.  The termination of total ratings under this section are not subject to the notice and other procedural requirements under 38 C.F.R. § 3.105(e).  An extension of 1, 2, or 3 months beyond the initial 3 months may be granted based on the factors enumerated above, and extensions of one or more months up to 6 months beyond the initial 6 months period may be made, upon approval of the Veterans Service Center Manager.  38 C.F.R. § 4.30 (2012).

In Felden v. West, 11 Vet. App. 427, 430 (1998), the Court, citing Dorland's Illustrated Medical Dictionary, p. 374 (28th ed. 1994), defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury."  The Court also defined recovery as "the act of regaining or returning toward a normal or healthy state."  Id., citing Webster's Medical Desk Dictionary 606 (1986).  In other words, the purpose of a temporary total evaluation, pursuant to 38 C.F.R. § 4.30, is to aid the appellant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation.

Based on a review of the evidence, the Board concludes that the criteria for an extension of Chapter 20 benefits for surgery on the lumbar spine past October 1, 2008, have not been met.

The Veteran had lumbar spine surgery in June 2008 and was assigned a temporary 100 percent total evaluation following this surgery through October 1, 2008.  A review of the VA treatment records pertaining to the surgery fails to show any complications.  There is no evidence that after October 1, 2008, the Veteran had incompletely healed surgical wounds, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more after.  

In fact, the evidence shows that the Veteran started to recuperate prior to October 1, 2008.  A VA treatment record dated in July 2008 indicates that the Veteran was going back to work next week.  The Veteran has reported that he needed six months to recuperate while wearing a back brace.  See October 2008 notice of disagreement.  Indeed, a statement from his VA physician in October 2008 confirms the need for six months of recuperation while wearing a brace.  However, a VA treatment record in November 2008 reflects that a back brace was no longer needed.  In April 2011, the Veteran submitted a statement indicating that he missed work from June 2008 to September 2008 due to his surgery, with multiple days missed from October 2008 to January 2009, at which time he was convalescing following a cervical spine surgery.

There is no indication in any of the Veteran's treatment records, or in his contentions, that his surgery resulted in severe postoperative residuals such as incompletely healed surgical wounds, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited) such that an extension beyond October 1, 2008, is warranted.  The evidence also does not show, nor does the Veteran contend, that he was immobilized by cast without surgery.  

The Board acknowledges the Veteran's contentions that he required continued convalescence beyond October 1, 2008.  However, although the Veteran continues to experience lumbar spine symptomatology even after his June 2008 surgery, the evidence fails to show that he required continued convalescence following surgery beyond October 1, 2008.  In reaching this conclusion, the Board observes that the evidence shows that the Veteran did have to miss multiple days of work after October 1, 2008.  The Court has held that notations in the medical record as to the Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30.  See Felden at 430; Seals v. Brown, 8 Vet. App. 291, 296-297 (1995).

In this case, although the Veteran might have had to miss work several days, the evidence does not show that he was incapable of working after October 1, 2008.  As noted above, the evidence reflects that he was released back to work in July 2008, months before the end of his convalescence period.  Furthermore, to the extent that the Veteran did miss work after October 1, 2008, in his increased rating and service connection claims, the Veteran's cumulative contentions indicate that his combined disabilities made him miss work.  As such, work absences after October 1, 2008, have not been shown to be due to a need to further recover from the surgery, despite his contentions.  The Board emphasizes that the provisions of 38 C.F.R. § 4.30 essentially provide compensation for the temporary disability caused by a surgical procedure with recognition that overall disability rating should be re-evaluated after stabilization.

The medical evidence also does not confirm any severe post-surgical residuals as required by 38 C.F.R. § 4.30(a)(2) after October 1, 2008.  None of the Veteran's pertinent treatment records or VA examinations for his lumbar spine revealed that his surgical wounds were incompletely healed or otherwise caused severe postoperative complications.  There were no surgical complications.

In summary, the medical evidence following the Veteran's June 2008 surgery does not demonstrate that beyond October 1, 2008, his lumbar spine disability necessitated additional convalescence; that he manifested severe postoperative residuals; or that his lumbar spine disability required an immobilization device.  In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding of any basis to extend the Veteran's convalescence period beyond the three months already granted following the June 2008 surgery.

The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim.  See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).  The Board, therefore, finds that an extension of Chapter 30 benefits for surgery on the lumbar spine past October 1, 2008, is not warranted.  Accordingly, the appeal is denied.

	D.  Temporary Total Evaluation

The Veteran contends that he is entitled to a temporary total evaluation for convalescence following cervical spine surgery in January 2009.  See, e.g. February 2009 claim.  

As noted above, under 38 C.F.R. § 4.30, a temporary total rating for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more.  38 C.F.R. § 4.30.

For the reasons set forth earlier in this decision, the Board concludes that service connection for degenerative disc disease of the cervical spine is not warranted.  The Veteran is not service-connected for any cervical spine disabilities.  In essence, the facts of this case are not in dispute, and the law is dispositive.  Here, the criteria for a temporary total evaluation for convalescence following cervical spine surgery have not been met as the Veteran did not have surgery for a service-connected disability.  Accordingly, the claim will be denied because of the absence of legal merit.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).

	

E.  TDIU

The Veteran contends that he is entitled to a TDIU as he is unable to work due to his service-connected disabilities.  See, e.g., April 2011 representative statement.

Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1) (2012).  Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation.  38 C.F.R. § 3.340(a)(2).

The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).  Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain.  Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991).

Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age.  38 C.F.R. § 3.341(a).  See also 38 C.F.R. § 4.19 (2012) (age may not be a factor in evaluating service-connected disability or unemployability) & Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In the current appeal, service connection has been granted for degenerative disc disease of the lumbar, evaluated as 40 percent disabling; lumbar radiculopathy of the left lower extremity, evaluated as 20 percent disabling; left foot neuroma, evaluated as 10 percent disabling; hearing loss of the left ear, evaluated as noncompensably disabling; and hypertension, evaluated as noncompensably disabling.  The Veteran's combined service-connected disability rating is 60 percent.  As such, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because, he does not have a disability rated as at least 60 percent and his combined rating is not at least 70 percent.  

It is also 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 disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a) , an extraschedular 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).  Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected conditions and advancing age, which would justify a total rating, based on unemployability.  Van Hoose, 4 Vet. App. at 363; see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). 

The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative.  The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose, 4 Vet. App. at 363.  Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered.  38 C.F.R. §§ 4.14, 4.19.  In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background.  38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. 

After reviewing the pertinent evidence of record, the Board concludes that the criteria for the award of a TDIU have not been met.  Regarding his employment background, the Veteran reported having to leave his job as a financial analyst in February 2011.  When he was employed, a statement from the Veteran's supervisor in April 2009 indicates that special accommodations were made for the Veteran's continued employment.  The Veteran testified that he left his employment because he missed too many days of work due to pain.  T. a 11-12.  He did not report being fired from his job due to his disabilities.  In April 2011, the Veteran's representative submitted a summary of the days the Veteran missed work from February 2007 until February 2011.  This confirms the numerous days the Veteran missed work; the specific disabilities aside from days missed due to convalescence from his lumbar spine surgery in June 2008 and cervical spine surgery in January 2009 are not shown.  In other words, these records show that the Veteran missed work; but, as discussed above, service connection for his cervical spine and left upper extremity disabilities is denied.  As such, this summary fails to show that the Veteran's connected-disabilities, alone, made him miss so many days.  

Regarding his education background, the Board observes that the Veteran has not submitted a formal application form for TDIU listing his education.  He has not provided his educational history, to include whether college was completed and whether he had additional training or education.  However, he did testify that he was a licensed minister, indicating that he has had some type of education and training in addition to what was needed to work as a financial analyst.  T. at 20.  At no time during this appeal has the Veteran contended seeking employment and being turned down for substantially gainful employment due to his service-connected disabilities.  

The pertinent medical evidence of record also does not indicate that the Veteran's disabilities alone preclude substantially gainful employment.  The March 2011 private medical examiner reported that, based on their examination, they established a residual functional capacity for the Veteran.  He could only stand for 15 minutes, lift and carry 10 pounds frequently and 20 pounds occasionally, sit for 30-45 minutes at a time and sit for three to four hours in total eight hour day.  It was the examiner's opinion that the Veteran was less than sedentary and totally unemployable.  However, the examiner did not discuss the separate effects of his service-connected lumbar spine disability versus his nonservice-connected degenerative disc disease of the cervical spine.  

A residual functional capacity questionnaire filled out by the March 2011 examiner indicate that the Veteran's symptoms associated with his lumbar spine, cervical spine, and left lower extremity were often severe enough to interfere with attention and concentration.  The Veteran could sit for 45 minutes at time and stand for 15 minutes.  He would need to sit in a recliner or lie down for two hours each day.  In a total eight hour working day, the Veteran could stand and walk for less than two hours and sit between three and four hours.  He did not need a cane or other assistive device when engaging in occasional standing/walking.  The Veteran would need a job that permitted shifting positions at will from sitting, standing or walking and would need to take unscheduled breaks or include periods of walking around during an eight hour working day.  Such breaks or periods would need to occur every 30 minutes and last for 15 minutes.  He had significant limitation in doing repetitive reaching, handling or fingering.  

During an eight hour working day, the Veteran was able to use his bilateral hands and fingers 100 percent of the time for grasping, turning, twisting objects and fine manipulation; he could use his right arm 100 percent of the time for reaching, but his left arm only 50 percent of the time.  During an eight hour working day, the Veteran could stoop, crouch and climb stairs ten percent of the time and kneel zero percent of the time.  The Veteran's impairments were opined to reduce his productivity level to 75 percent or less compared to a healthy individual.  His impairments were likely to produce "good days" and "bad days."  The Veteran would likely be absent from work more than four days per month.  Depression and fatigue were opined to be other limitations that would affect the Veteran's ability to work at a regular job on a sustained basis.  As this evaluation takes into account the Veteran's nonservice-connected degenerative disc disease of the cervical spine and does not limit discussion of the Veteran's work limitations due only to his service-connected disabilities, the Board finds it lacks probative value.  

A private vocational assessment in April 2011 indicates that the Veteran experienced chronic pain related to his neck, low back and radiculopathy.  The reports of the March 2011 residual functional capacity questionnaire were discussed.  The April 2009 supervisor letter was also addressed.  It was the consultant's opinion that the Veteran had been provided more than reasonable work accommodations by his employer that were generally not provided by employers within the general labor market.  Considering his numerous and frequent absences and numerous prolonged absences from work, he would not have been be able to maintain any type of employment were it not for the consideration and accommodations provided by his particular employer since his discharge from the military.  Generally employers within the general labor market only allowed a specific number of sick days or medical leaves per year and generally did not allow more than one unexcused absence per month.  According to the March 2011 questionnaire, the Veteran would be expected to miss more than four days per month due to pain and ongoing physical symptoms.  Reportedly, the Veteran had to leave his job in February 2011 due to increasing sick days, which could no longer be accommodated by his employer that had already provided more than reasonable accommodations since 2006.  Given what appeared to be the permanency of the Veteran's limitations it was their opinion that the Veteran was considered to be vocationally disabled.

As with the March 2011 questionnaire, this assessment does not focus solely on the Veteran's service-connected disabilities.  Rather, it also addresses the Veteran's degenerative disc disease of the cervical spine.  As already noted, an inability to work due to non-service-connected disabilities may not be considered.  38 C.F.R. §§ 4.14, 4.19.  Therefore, this assessment does not establish that the Veteran's service-connected disabilities solely render him unemployable.  

VA examinations addressing the impact of the Veteran's service-connected disabilities on his employability were obtained in November 2011 and December 2011.  A general medical examiner in November 2011 opined that the Veteran's hypertension caused no problems with his employability and his neuroma of the foot was much less limiting that his back problem and did not contribute more than his back.  His back condition caused near constant pain with numbness and paresthesias of the lateral left leg to the foot.  The Veteran could walk about 100 yards and stand or sit for about 15 minutes at a time.  He took medication for pain.  No stooping or lifting more than about 20 pounds.  Climbing stairs was nearly impossible because of the pain.  The Veteran missed about two to three days a week because of back pain.  He was a financial analyst and should be able to do sedentary work (such as financial analyst) particularly if allowed to work at home.  The November 2011 examination report for the Veteran's foot noted that he could only stand for two minutes. 

At a December 2011 VA examination for his hearing loss, the Veteran reported that his claim for unemployability did not have anything to do with his hearing, but rather his back, left leg and feet problems.  He reported that speech sounded muffled like he was under water, but it did not affect daily activities.  

In this case, no medical professional has provided any opinion indicating that the Veteran's service-connected disabilities alone render him incapable of performing the physical and mental acts required by employment.  Even with his physical disabilities, the November 2011 VA examiner opined that the Veteran was to able to engage in sedentary employment.  Although private evaluations indicate that the Veteran is unemployable, as already discussed above, they address the effect of the Veteran's nonservice-connected degenerative disc disease of the cervical spine on his employability.  In deciding whether an award of TDIU is warranted, the Board cannot take into account nonservice-connected disabilities or age.

At no time during this appeal has the Veteran demonstrated that he is unable to engage in substantially gainful employment due to his service-connected disabilities.  He has not reported any efforts that he has undertaken to engage in employment.  The Veteran testified that he was a licensed minister; he has not provided any indication that he is unable to engage in substantially gainful employment in that vocation.  The evidence does not show that the Veteran has tried to obtain employment and was turned down or that he was hired by an employer and then fired due to an inability to work because of his service-connected disabilities.  The VA examiner indicated that the Veteran should be able to do sedentary work (such as financial analyst) particularly if allowed to work at home.  Considering that some employers do allow teleworking, there is no indication that the Veteran is unable to engage in that type of employment, consistent with his employment experience and educational background.  Indeed, the Veteran testified that his former employer allowed him to work at home.  T. at 12.  

In sum, the Veteran's contentions and the pertinent evidence of record fail to show that his service-connected disabilities alone preclude employment.  Based on the foregoing, the Board finds that the Veteran's service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational background and occupational experience.  Accordingly, the Board concludes that the criteria for a TDIU are not met and referral for extraschedular consideration is not warranted.  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to a TDIU is denied.  See 38 U.S.C.A §5107. 


ORDER

Entitlement to service connection for degenerative disc disease of the cervical spine, to include as secondary to the service-connected lumbar spine disability, is denied.

Entitlement to service connection for numbness and tingling in the left upper extremity, to include as secondary to the service-connected lumbar spine disability, is denied.

Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied.

Entitlement to a rating in excess of 10 percent for left foot neuroma is denied.

Entitlement to a rating in excess of 20 percent for lumbar radiculopathy of the left lower extremity is denied.

Entitlement to an extension of Chapter 30 benefits for surgery on the lumbar spine past October 1, 2008, is denied.

Entitlement to a temporary total evaluation for convalescence for a cervical spine surgery is denied.

Entitlement to a TDIU is denied.



______________________________________________
MICHAEL MARTIN 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs