Citation Nr: 1312326 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-44 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for herniated discs of the cervical spine with degenerative joint disease. 2. Entitlement to a rating in excess of 50 percent for residuals of a compression fracture of the lumbar vertebrae L1 with lumbosacral strain (hereinafter "lumbar spine disability"). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 2, 2010. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which declined to reopen the Veteran's claim for service connection for degenerative joint disease and limitation of motion of the cervical spine, continued the percent rating for his lumbar spine disability, and denied entitlement to a TDIU. During the course of the appeal, a March 2012 rating decision granted service connection for right lower extremity radiculopathy, as associated with his lumbar spine disability, and assigned a 10 percent rating, effective December 2, 2010. However, as this grant does not represent a total grant of benefits sought on appeal for a lumbar spine disability, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the March 2012 rating decision granted entitlement to a TDIU, effective December 2, 2010. As such awards are not a total grant of benefits sought on appeal, the Board has recharacterized the claims as reflected on the title page. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that certain documents, including VA medical records dated from February 2009 to March 2012, are potentially relevant to the issues on appeal. Moreover, such records were considered in the April 2012 supplemental statement of the case. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. FINDINGS OF FACT 1. A final rating decision dated in August 2001 and issued in October 2001 denied service connection for herniated discs of the cervical spine with degenerative joint disease. 2. Additional evidence associated with the claims file since the October 2001 rating decision is cumulative or redundant of evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for herniated discs of the cervical spine with degenerative joint disease, and/or does not raise a reasonable possibility of substantiating the claim. 3. VA received the Veteran's current claims for an increased rating for his service-connected lumbar spine disability and entitlement to a TDIU on February 26, 2009. 4. For the entire appeal period, the Veteran's lumbar spine disability is manifested by pain, with forward flexion limited to 25 degrees, without evidence of ankylosis of the spine, incapacitating episodes, symptomatic scarring, or neurological impairment other than right lower extremity radiculopathy. 5. For the entire appeal period, the Veteran's lumbar spine has been productive of no more than mild right lower extremity radiculopathy. 6. As of February 26, 2009, the Veteran's service-connected lumbar spine disability and right lower extremity radiculopathy are disabilities resulting from common etiology, and are considered a single 60 percent disability rating. These disabilities combine to an overall 60 percent rating. 7. The Veteran has work experience as a logistics management specialist; he has four years of a high school education. 8. Since February 26, 2009, the weight of the competent and probative evidence indicates that the impairment caused by the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The October 2001 rating decision that denied the Veteran's claim of entitlement to service connection for herniated discs of the cervical spine with degenerative joint disease is final. 38 U.S.C.A. § 7105(c) (West 1991) [(West 2002)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001) [(2012)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for herniated discs of the cervical spine with degenerative joint disease. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. For the entire appeal period, the criteria for a rating in excess of 50 percent for the lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 4. Since February 26, 2009, the criteria for a 10 percent rating, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 5. Since February 26, 2009, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). As the Board's decision to grant a TDIU as of February 26, 2009, the date VA received his claim, is completely favorable, no further action is required to comply with the VCAA and implementing regulations. Regarding the issue of whether new and material evidence has been received to reopen a claim of service connection for herniated discs of the cervical spine with degenerative joint disease, in an April 2009 letter issued prior to the rating decision on appeal, the RO provided notice regarding the need to submit new and material evidence to reopen the Veteran's previously denied claim, and advised the Veteran of the basis for the prior denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Specifically, the Veteran was informed that his claim had been previously denied in a rating decision issued in October 2001 on the basis that, while his service treatment records showed some complaint of neck pain and stiffness following a boating accident, there was no indication that such developed into a chronic disability. Additionally, while he suffered another injury to his neck in an automobile accident, the X-rays were negative and he had full range of motion at such time. The letter also defined new and material evidence and provided notice of the information and evidence necessary to substantiate the underlying service connection claim. Additionally, the April 2009 letter provided the Veteran with notice of the information and evidence needed to establish a disability rating and effective date in accordance with Dingess/Hartman, supra. With respect to the claim for increased rating for a lumbar spine disability, the Veteran was provided VCAA notice in an August 2010 letter. This letter advised the Veteran of what information and evidence is needed to substantiate his claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "Veteran specific"). The letter further advised the Veteran of how effective dates are assigned, and the type of evidence which impacts those determinations in accordance with Dingess/Hartman, supra. Although the August 2010 notification was issued after the adjudication on appeal, the Veteran's case was subsequently readjudicated in the October 2010 statement of the case and the February 2011, June 2011, July 2011, April 2012, and December 2012 supplemental statements of the case, and he had the opportunity to submit additional argument and evidence. Therefore, the content timing error did not affect the essential fairness of the adjudication of the claim. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include service treatment records, VA and private medical records, VA examination reports, information regarding the Veteran's retirement, recommendations for travel accommodations at work, and the Veteran's statements. The Board notes that the Veteran has not been provided with a VA examination in the instant case; however, the VCAA and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim. See 38 C.F.R. § 3.159(c)(1),(2) and (3). Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion. As the Veteran's claim is not reopened herein, there is no obligation on the part of VA to provide a medical examination or opinion in connection with his appeal. Relevant to the Veteran's claim for an increased rating for his lumbar spine disability, he was afforded a VA examination in April 2009. Neither the Veteran nor his representative has alleged that such is inadequate for rating purposes. Moreover, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected lumbar spine disability as it includes an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. The Board acknowledges that the April 2009 VA examination was conducted four years ago; however, the remainder of the record adequately reveals the current state of the Veteran's disability. Specifically, as will be described in detail below, there is additional medical evidence, including VA and private treatment records, that adequately addresses the level of impairment of his lumbar spine disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). Moreover, the Veteran has not alleged worsening since the April 2009 VA examination. In this regard, while he and his representative have claimed that his lumbar spine disability is worse than the current 50 percent rating, they have not contended that the condition has increased in severity since the April 2009 VA examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time not a basis for requiring of new examination). Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). New and Material Evidence Claim Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for residuals of a neck injury was originally denied by a rating decision in March 1972. The Veteran subsequently attempted to reopen his claim, but it was denied in a September 1997 rating decision that was issued in February 1998. Most recently, in a rating decision dated in August 2001 and issued in October 2001, the RO again denied service connection for herniated discs of the cervical spine with degenerative joint disease based on the rationale that a cervical spine disability was not related to the Veteran's period of service or to his service-connected lumbar spine disability. In October 2001, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for herniated discs of the cervical spine with degenerative joint disease was received until February 2009, when VA received his application to reopen such claim. Therefore, the October 2001 rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991) [(West 2002)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001) [(2012)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b) , which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for herniated discs of the cervical spine with degenerative joint disease was received prior to the expiration of the appeal period stemming from the October 2001 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The evidence received subsequent to the October 2001 rating decision includes, in relevant part, VA and private medical records dated from March 2002 to March 2012, an April 2009 VA spine examination, and the Veteran's statements. The newly received VA and private medical evidence shows that the Veteran received intermittent treatment for cervical spine complaints, including cervical epidural steroid injections, cervical facet injections, a March 2002 anterior cervical discectomy and decompression of the nerve roots, and a February 2010 anterior cervical decompression, arthrodesis, and implantation of interbody device. On VA examination in April 2009, the Veteran was diagnosed with degenerative disc disease of the cervical spine. As indicated previously, the evidence of record at the time of the October 2001 decision included medical records showing that the Veteran had a current diagnosis of a cervical spine disorder, but there was no competent evidence showing that such was related to his period of active service or his service-connected lumbar spine disability. The newly received evidence still does not show that the Veteran's cervical spine disorder is related to his period of service or to his service-connected lumbar spine disability. At no time did any of the Veteran's treating providers relate his cervical spine disorder to his period of service or to his service-connected lumbar spine disability. Moreover, the Veteran's statements regarding the etiology of such disorder, to include his allegations that such is directly related to service or his service-connected lumbar spine disability are duplicative of the evidence at the time of the October 2001 rating decision. Thus, as the new evidence does not show that the Veteran's cervical spine disorder is related to service or a service-connected disability, it does not relate to an unestablished fact necessary to substantiate the claim. Accordingly, the evidence is not material. As there is no new evidence showing that the Veteran's current cervical spine disability is related to his period of service or his service-connected lumbar spine disability, the Board concludes that new and material evidence has not been received to reopen the Veteran's claim. Therefore, the appeal on that issue is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. The Veteran contends that he is entitled to a higher disability rating for his lumbar spine disability. Such disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, as 50 percent disabling. Additionally, the Veteran was granted a separate 10 percent rating for right lower extremity radiculopathy, effective December 2, 2010. The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent evaluation requires evidence of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation requires evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Any associated objective neurologic abnormalities should be evaluated separately, under an appropriate diagnostic code. Id. at Note 1. On VA examination in April 2009, the Veteran reported undergoing back surgery in 1993. He complained of currently experiencing back pain that was normally a 6/10 in severity and increased to 8/10 with activity. He stated that his back pain was aggravated by standing for 30 minutes, walking for 1 mile, going up and down stairs, lifting 10 pounds, and driving for over one hour. He indicated that the back pain radiated to both knees but denied the use of a brace. He also denied incontinence, although he did report erectile dysfunction. Examination revealed that the Veteran's gait was normal. He could walk on his heels and toes. Straight leg raising was positive at 70 degrees bilaterally. Tendon reflexes of the knees were 2/4 bilaterally, and reflexes of the ankles were 1/4 bilaterally. Sensation to pinprick and vibrator stimulation of the legs and rectal examination were normal. Range of motion testing showed 25 degrees flexion, 25 degrees extension, 20 degrees lateral flexion bilaterally, and 20 degrees lateral rotation bilaterally. There was an increase in paraspinous muscle tone bilaterally, greater in the right side than the left side. The Veteran had a scar in the lumbar area measuring 3.5 centimeters that was well-healed. An x-ray of the lumbar spine indicated that there was narrowing of L4-L5 disc space, mild anterior wedging of L1 vertebra, and minor osteophyte formations along the margins of all the lumbar vertebrae. There was no evidence of spondylolysis or spondylolisthesis. The examiner diagnosed the Veteran with mild anterior compression L1, insignificant and asymptomatic, and chronic low back pain following L4-L5 decompression. VA and private medical records dated from February 2009 to March 2012 show that the Veteran received intermittent treatment for his lumbar spine disability. A February 2010 x-ray of the chest indicated that the Veteran had lumbar spondylosis. An August 2010 MRI of the lumbar spine revealed status post right L5 laminectomy with collapse of the L4-L5 disc that has a right posterior prominence that mildly indents the canal and narrows the right neural foramen more than the left neural foramen. There was also mild narrowing of the L5-S1 foramina due to facet hypertrophy. In an October 2010 VA medical report, the Veteran was treated for lumbar degenerative disc disease/degenerative joint disease with radiculopathy and history of lumbar laminectomy. Straight leg raising and facet loading test were positive on the right. There was spinous process tenderness in the lower thoracic and lumbar spine and myofascial tenderness at the lumbar paraspinals. The Veteran had sciatic notch/sacroiliac joint tenderness that was greater on the right side than the left side. He was also noted to have severe lumbar paraspinal muscle spasm. Private and VA medical records dated from January 2011 to March 2012 show that the Veteran received lumbar facet and steroid injections to treat his right lumbar radiculopathy. In a July 2011 VA medical report, the Veteran complained of increasing lower back pain and weakness. He reported that over the past 2 to 3 weeks, he had experienced intermittent shooting back pain that radiated down the bilateral anterior lower extremities. Specifically, he described his right lower extremity pain as coming from his back and going into his right hip and down the lateral thigh into the anterior knee. An electromyography was normal, except for right sural mononeuropathy. A subsequent February 2012 VA medical report indicated that the Veteran underwent rhizotomy for right lumbar facet arthritis and lumbar radiculopathy. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the orthopedic manifestations of the Veteran's lumbar spine disability are appropriately evaluated as 50 percent disabling for all periods under consideration. The objective findings of record do not reflect evidence of unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Indeed, although flexion was limited to 25 degrees, no ankylosis was found on VA examination in April 2009. There is also no evidence that the Veteran's range of motion was additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance after three repetitions. Thus, even considering the Veteran's subjective complaints of pain, the medical evidence of record does not support any additional limitation of function in response to repetitive motion that would support an evaluation in excess of the 50 percent assigned during the appeal period. See DeLuca, supra; Mitchell, supra; 38 C.F.R. §§ 4.40,4.45, 4.59. The Veteran has not alleged that when his back pain occurred, he had to be limited to bed rest. The medical evidence is also negative for any incapacitating episodes of the Veteran's lumbar spine disability during the entire appeal period. An "incapacitating episode" for purposes of Diagnostic Code 5243 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. Accordingly, evaluation of the Veteran's disability pursuant to Diagnostic Code 5243 based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a. With regard to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board acknowledges that the Veteran is in receipt of a 10 percent rating for right lower extremity radiculopathy, effective December 2, 2010. Prior to December 2, 2010, the Veteran consistently reported symptoms of radiating pain down his bilateral lower extremities. On VA examination in April 2009, straight leg raising was positive at 70 degrees bilaterally. Tendon reflexes of the knees were 2/4 bilaterally, and reflexes of the ankles were 1/4 bilaterally. There was also an increase in paraspinous muscle tone bilaterally, greater in the right side than the left side. During an October 2010 VA treatment session, the Veteran was noted to have lumbar degenerative disc disease/degenerative joint disease with radiculopathy. Straight leg raising and facet loading test were positive on the right. There was spinous process tenderness in the lumbar spine, myofascial tenderness at the lumbar paraspinals, severe lumbar paraspinal muscle spasm, and sciatic notch/sacroiliac joint tenderness that was greater on the right side than the left side. Given the objective medical evidence prior to December 2, 2010, the Board resolves all doubt in favor of the Veteran and finds that his lumbar spine disability was productive of objective neurological manifestations in the right lower extremity as of February 26, 2009, the date VA received the Veteran's claim for an increased rating. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Because the Veteran's neurological manifestations are wholly sensory in nature, the Board finds that the Veteran's neurological dysfunction is no more than mild in nature. Therefore, a 10 percent rating, but no higher, for right lower extremity radiculopathy is granted, effective February 26, 2009. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board further finds that the Veteran's lumbar spine disability does not result in any neurological impairment other than mild right lower extremity radiculopathy at any point during the appeal period. In this regard, the objective medical evidence of record fails to show left lower extremity radiculopathy, erectile dysfunction, or bowel or bladder incontinence associated with his lumbar spine disability. Specifically, a July 2011, electromyography was normal, except for right sural mononeuropathy. Moreover, the Veteran has denied incontinence and, while he reported erectile dysfunction, it has not been related to his service-connected back disability. The Board also notes that the Veteran has a scar in the lumbar area measuring 3.5 centimeters that was well-healed. As such is asymptomatic and is no more than 3.5 centimeters, a separate compensable rating for his scar is not warranted. The Board concludes that the medical findings on examinations are of greater probative value than the Veteran's allegations regarding the severity of his lumbar spine disability. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluations assigned and do not more nearly approximate the criteria for higher evaluations at any time during all periods on appeal. See 38 C.F.R. §§ 4.71a, Diagnostic Codes 5237, 5243, 4.124a, Diagnostic Code 8520; see also Fenderson, supra. The Board has also considered whether the Veteran's lumbar spine disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. The Veteran's 50 percent rating for the orthopedic manifestations of his lumbar spine disability contemplated his subjective complaints of pain as well as his functional impairment. There was no evidence that his lumbar spine disability was manifested by ankylosis or incapacitating episodes. Therefore, the Veteran's subjective complaints were included in the 50 percent rating. Similarly, the Veteran's 10 percent rating for the neurological manifestations of his lumbar spine disability contemplated his subjective complaints of pain as well as his functional impairment. The Veteran complained of radiating pain, but there were no findings of neurological impairment that was not wholly sensory. Therefore, the Veteran's subjective complaints were included in the 10 percent rating. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Reasonable doubt has been resolved in favor of the Veteran when possible. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from common etiology will be considered as one disability. 38 C.F.R. § 4.16(a)(2). For a Veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a Veteran is entitled to a TDIU, neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. As a result of this decision herein, service connection was granted for right lower extremity radiculopathy, effective February 26, 2009. Therefore, as of February 26, 2009, the date of the Veteran's claim, he was service-connected for a lumbar spine disability, rated as 50 percent disabling; and right lower extremity radiculopathy, rated as 10 percent disabling. Because the Veteran's right lower extremity radiculopathy arises from his lumbar spine disability, the Veteran's lumbar spine disability and right lower extremity radiculopathy result from common etiology and are considered a single 60 percent disability rating. See 38 C.F.R. §§ 4.16(a), 4.25, Table I, Combined Ratings Table. The overall combined disability rating was 60 percent. 38 C.F.R. § 4.25. Therefore, as of February 26, 2009, the Veteran meets the threshold disability percentage criteria laid out in 38 C.F.R. § 4.16(a). The evidence indicates that the Veteran has four years of a high school education and that since discharge from service, he has only worked in the Department of the Army in the Communications Branch as a logistics management specialist. His Army personnel records reveal that the Veteran retired in 2007 in order to obtain retirement benefits. In a December 2000 statement, the Veteran reported that his duties at his former job included fielding new equipment, new equipment training, monitoring of training, taking inventory, and using the computer to make shortage lists or reports. His duties required him to lift in excess of 20 pounds, bend, stretch, reach, and climb. The Veteran submitted letters dated from August 2000 to December 2004 in which various treating physicians reported that, due to the Veteran's lumbar and cervical myelopathy, he was unable to sit, stand, or kneel for prolonged periods of time. The physicians recommended that in order to accommodate the Veteran's lumbar spine disability, the Veteran needed to be given first class or business class seating for airplane trips lasting over an hour when traveling for work. An October 2001 memorandum from the Veteran's former supervisor reveals that the Veteran received authorization to travel in first class seating. The complete findings of the April 2009 VA examination are noted in the preceding section; however, as relevant to the TDIU inquiry, such revealed that the Veteran reported that his back pain was aggravated by standing for 30 minutes, walking for 1 mile, going up and down stairs, lifting 10 pounds, and driving for over one hour. Range of motion testing showed 25 degrees flexion, 25 degrees extension, 20 degrees lateral flexion bilaterally, and 20 degrees lateral rotation bilaterally. Importantly, after interviewing the Veteran, reviewing the record, and conducting a physical examination, the VA examiner opined that the Veteran would be considered unemployable because of his lumbar spine disability. The Veteran has only worked as a logistics management specialist. The evidence shows that the duties of this job included lifting in excess of 20 pounds, bending, stretching, reaching, climbing, and frequent airplane travel. The evidence of record reveals that an April 2009 VA examiner found the Veteran to be considered unemployable because of his lumbar spine disability. Several private physicians have also indicated that the Veteran was unable to sit, stand, or kneel for prolonged periods of time due to his lumbar spine disability. Range of motion findings at the Veteran's April 2009 VA examination suggest that any work that involved bending, lifting, carrying, or climbing would not be feasible. Indeed, the Veteran reported that his back pain was aggravated by standing for 30 minutes, going up and down stairs, and lifting 10 pounds. The Veteran's functional limitations would also make it difficult for him at a sedentary job, as he is unable to sit for prolonged periods of time. Indeed, the Veteran's back pain is noted to be aggravated when he drives for over one hour. Moreover, the evidence shows that while the Veteran had been employed, he had to be accommodated when traveling for work. When the airline flight lasted over an hour, the Veteran required first class or business class seating, which, as was noted in an October 2001 memorandum from the Veteran's former employer, could cost 5 times more than a coach class airline ticket. Thus, given the Veteran's educational and occupational history and the constraints noted above, and resolving all doubt in favor of the Veteran, the weight of the competent, probative evidence indicates that the Veteran as likely as not has been prevented from obtaining and retaining substantially gainful employment as a result of his service-connected disabilities, as of February 26, 2009, the date of his claim. In summary, the Veteran has met the criteria for a TDIU as of February 26, 2009, and the Board finds the Veteran's service connected disabilities, considered together, render him unemployable. Accordingly, entitlement to a TDIU is granted, effective February 26, 2009. Reasonable doubt has been resolved in favor of the Veteran. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER As new and material evidence has not been received, the claim of entitlement to service connection for herniated discs of the cervical spine with degenerative joint disease is not reopened and the appeal is denied. A rating in excess of 50 percent for a lumbar spine disability is denied. A separate 10 percent rating, but no higher, for right lower extremity radiculopathy is granted, effective February 26, 2009, subject to the laws and regulations governing payment of monetary benefits. A TDIU is granted, effective February 26, 2009, subject to the laws and regulations governing payment of monetary benefits. ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs