Citation Nr: 1314518 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 08-19 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased initial rating for service-connected lumbosacral strain, rated as 20 percent disabling for the period prior to April 2, 2009, and for the period since April 2, 2009, rated as 20 percent disabling based upon orthopedic manifestations, 20 percent disabling for neurologic manifestations affecting the right lower extremity, and 20 percent disabling for neurologic manifestations affecting the left lower extremity. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Nathaniel J. Doan, Counsel INTRODUCTION The Veteran served on active duty from March 1954 to June 1957, and from June 1959 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that implemented a May 2007 Board decision granting the Veteran's claim for service connection for lumbosacral strain. In the July 2007 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a noncompensable (zero percent) disability rating, effective April 21, 2003. By a January 2009 rating decision, the AOJ increased the disability rating for the Veteran's service-connected lumbosacral strain from 0 to 20 percent disabling, effective April 21, 2003. Finally, in an August 2009 rating decision, the AOJ granted separate 20 percent disability ratings for peripheral neuropathy of the right and left lower extremities, effective April 2, 2009. The U.S. Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulation. As such, an initial rating claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, notwithstanding the assignment of higher ratings during the course of the appeal, the Veteran's claim for a higher initial rating for service-connected lumbosacral strain remains in controversy. The Veteran testified before the undersigned in September 2010 at a hearing that was held at the RO. A transcript of the hearing is of record. In September 2011, the Board, on its own motion, advanced the Veteran's case on its docket, pursuant to 38 C.F.R. § 20.900(c). In November 2011, the Board reopened the Veteran's previously denied claim of entitlement to service connection for bilateral hearing loss, and remanded for additional development for both the underlying claim for service connection and the claim for an increased initial rating for service-connected lumbosacral strain. In a July 2012 rating decision, the AOJ granted the Veteran's claim of entitlement to service connection for bilateral hearing loss and assigned a noncompensable disability rating, effective July 29, 2009. An increased rating of 10 percent was assigned from January 3, 2012. This decision constituted a complete grant of the benefits sought on appeal with respect to this issue. The Veteran has not disagreed with the effective date of service connection, the ratings assigned, or the effective date of the assignment of the 10 percent rating. Accordingly, the issue is no longer in appellate status and the Board will not further address the bilateral hearing loss disability. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran's service-connected lumbosacral strain has been manifested by severe limitation of motion. Flexion has been limited at most to 20 degrees; ankylosis has not been shown. 2. Throughout the pendency of the appeal, the Veteran's service-connected lumbosacral strain has been productive of neurologic impairment of the right lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve. 3. Throughout the pendency of the appeal, the Veteran's service-connected lumbosacral strain has been productive of neurologic impairment of the left lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve. 4. The Veteran's service-connected lumbosacral strain renders him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but not higher, for service-connected lumbosacral strain have been met for the entire period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (2003), 5243 (2012). 2. The criteria for a separate 20 percent evaluation for right-sided moderate incomplete paralysis of the sciatic nerve have been met for the entire period on appeal, including prior to April 2, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012). 3. The criteria for a separate 20 percent evaluation for left-sided moderate incomplete paralysis of the sciatic nerve have been met for the entire period on appeal, including prior to April 2, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012). 4. The criteria for TDIU have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he is entitled to a higher initial rating for his service-connected lumbosacral strain, as the ratings currently assigned do not adequately compensate him for the symptoms associated with his disability. In particular, he contends that pain and limitation of motion associated with his service-connected lumbosacral spine disability prevent him from being able to work. To the extent that the evidence of record demonstrates that he sustained a work-related back injury in February 1983, after his separation from service, the Veteran asserts that the injury he sustained in service predisposed him to sustaining further back injury, such that all current manifestations of his disability should be considered to be service connected, and contemplated in the assigned disability rating. The May 2007 Board decision that granted the Veteran's claim for service connection granted service connection only for the disability attributable to the injury the Veteran sustained in service; the disability attributable to the Veteran's February 1983 back injury was to be medically distinguished from the service-connected disability. A review of the record demonstrates that there are numerous conflicting medical opinions regarding the degree of disability attributable to the service-related injury, with the balance of the opinions concluding that the 1983 injury was an aggravation of the injury sustained in service, such that manifestations present following the 1983 injury were associated with the in-service injury. Given the medical complexity of distinguishing the degree of disability attributable to the in-service injury as compared to the disability attributable to the injury the Veteran sustained after his separation from service, the AOJ, resolving all doubt in the Veteran's favor, has rated the Veteran's lumbosacral strain on the basis of all manifestations present (See January 2009 and August 2009 rating decisions). As the matter of distinguishing the disability attributable to the injury the Veteran sustained in service from the disability attributable to the injury sustained in February 1983 is not within the province of the Board, and the medical professionals qualified to opine on such matters on balance have determined that all present manifestations may be linked to the in-service injury, the Board also will evaluate all manifestations currently present as disability associated with the service-connected disability. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (holding that the Board may consider only independent medical evidence to support its findings and cannot reach its own unsubstantiated medical conclusions); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that the Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so). I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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 or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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. 38 C.F.R. § 3.159(b)(1) (2012). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the July 2007 rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice served its purpose, and its application is no longer required. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006). A June 2008 Statement of the Case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating and readjudicated the matter; January 2009, March 2009, April 2009, May 2010, and July 2012 Supplemental SOCs (SSOCs) readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond and supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). In short, the record indicates that the Veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. As to VA's duty to assist, all relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes the reports of May 2006, June 2007, December 2007, January 2009, July 2009, and December 2011 VA examinations; private and VA treatment records; multiple lay statements; and the transcript of the September 2010 hearing before the undersigned. The Veteran and his representative have not identified any available, outstanding relevant evidence. In this regard, VA clinical records dated in May 2012 show that the Veteran reported that he had fallen while he was gardening. He sought treatment at a private hospital, where he reportedly was prescribed Naproxen, Valium, and Flexeril, and he was referred for evaluation by a chiropractor. He reported that the chiropractor had conducted an X-ray examination, and that he had adjusted the Veteran's spine on three separate occasions. The clinical record in which this information appears does not specify which portion of the Veteran's spine was injured or treated, and the records from neither the private hospital nor the chiropractor are of record. Notably, however, VA clinical records dated on the day of the injury show that the Veteran complained of pain across his right shoulder, radiating down his right arm. He was advised to seek treatment at the nearest hospital. As the injury does not appear to have involved the Veteran's service-connected lumbosacral strain, an attempt to obtain records from the private hospital and the chiropractor is not necessary. In addressing whether there was substantial compliance with the Board's November 2011 Remand directives, the record reflects substantial compliance, in that a VA examination was conducted in December 2011, and the appeal was readjudicated by a July 2012 SSOC. Stegall v. West, 11 Vet. App. 268, 271 (1998). The December 2011 examiner completed all necessary testing, examined the Veteran, reviewed his claims file, and provided the information requested by the November 2011 Remand. Therefore, the examination was adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). With respect to that portion of the November 2011 Remand that directed that the AOJ obtain disability records from the Social Security Administration (SSA), a December 2011 response from SSA demonstrates that the records associated with the Veteran's application for benefits have been destroyed. In a February 2012 letter, the AOJ notified the Veteran of the unavailability of the SSA records. As the records requested in the November 2011 Remand are not available, no further development to obtain these records is necessary. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). The Veteran was provided an opportunity to set forth his contentions during the September 2010 hearing before the undersigned. The Court has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the September 2010 hearing the undersigned set forth the issue to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In sum, there is no further action to be undertaken to comply with the provisions of the VCAA. VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Higher Initial Rating Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall 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 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). The Veteran filed an application to reopen his previously denied claim of entitlement to service connection for chronic lumbosacral strain on April 21, 2003. Service connection subsequently was granted, effective April 21, 2003. See 38 C.F.R. § 3.400(r) (2012). During the pendency of his appeal for an increased initial rating, the regulations for rating disabilities of the spine were revised, effective September 26, 2003. See Schedule of Rating Disabilities: The Spine, 68 Fed. Reg. 51454 (Aug. 27, 2003). Where a law or regulation governing a claim is changed while a claim is pending, the version most favorable to the claimant applies from the effective date of the change, while the previous version of the regulation applies prior to the date of change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003), 69 Fed. Reg. 25179 (2004). The Board will therefore evaluate the Veteran's service-connected lumbosacral strain under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 5110(g) (West 1991); Green v. Brown, 10 Vet. App. 111, 117 (1997); 38 C.F.R. § 3.114 (2002); VAOPGCPREC 3-00 (Apr. 10, 2000), 65 Fed. Reg. 33422 (2000). The AOJ has considered and notified the Veteran of both the old and the new versions of the relevant criteria. The following decision results in no prejudice to the Veteran in terms of any lack of notice of the regulatory revisions. Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service-connected lumbosacral strain has been evaluated as 20 percent disabling under both the old diagnostic criteria of DC 5295, and the new diagnostic criteria of DC 5237. Both diagnostic codes pertain to lumbosacral strain. For reasons explained in greater detail below, the Veteran's service-connected lumbosacral strain disability may also be rated under the old diagnostic criteria of DCs 5292 and 5293, which pertain to limitation of motion of the lumbar spine, and intervertebral disc syndrome, respectively. Prior to September 26, 2003, a 20 percent rating was warranted for moderate limitation of motion of the lumbar spine, and a 40 percent rating was warranted for severe limitation of motion. 38 C.F.R. § 4.71a, DC 5292 (2002). Words such as "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). The old diagnostic criteria of DC 5295 provided for a 20 percent rating for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating was warranted for lumbosacral strain that was severe, with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, and narrowing or irregularity of the joint space; a 40 percent evaluation was also warranted when only some of these symptoms were present if there was also abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002). At the time the veteran filed his claim for service connection for a low back disability, intervertebral disc syndrome was evaluated either on the total duration of incapacitating episodes resulting from intervertebral disc syndrome over the past 12 months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. A rating of 20 percent was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. Finally, a rating of 60 percent was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. This regulation was slightly revised in September 2003. 38 C.F.R. § 4.71a, DC 5293 (2002). Effective September 26, 2003, the regulations for rating disabilities of the spine were revised, and the diagnostic codes were reclassified. These reclassified diagnostic codes include 5237 (lumbosacral strain) and 5243 (intervertebral disc syndrome). See 68 Fed. Reg. 51454. The code for intervertebral disc syndrome (DC 5243), permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DCs 5237, 5242, 5243 (2012). The September 2003 regulatory revisions set forth a General Rating Formula for Diseases and Injuries of the Spine, 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 as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). After a review of the evidence pertaining to the Veteran's service-connected lumbosacral strain, the Board finds that the appropriate diagnostic codes for the evaluation of his disability are the diagnostic code under which his disability is presently rated, DC 5295, and DC 5292. Diagnostic Code 5295 is appropriate as it pertains specifically to the disability for which the Veteran is service-connected, lumbosacral strain. Diagnostic Code 5292 is also appropriate, as that diagnostic code provides rating criteria for limitation of lumbar spine motion. Revised Diagnostic Code 5237 is also applicable, as it too provides criteria for lumbosacral strain. In any event, under the revised criteria, all lumbar spine disabilities, with the exception of intervertebral disc syndrome, are rated under the General Formula for Diseases and Injuries of the Spine. The Board has also considered rating the Veteran's low back disability under the old diagnostic criteria of DC 5293 and current DC 5243, which provide rating criteria for intervertebral disc syndrome. Such diagnostic codes are applicable in this case, as the record provides diagnoses of a herniated disc and radicular pain. Accordingly, former DC 5293 and revised DC 5243 are applicable. It has not been contended or shown in this case that the Veteran has residuals of a fracture of the vertebra (DC 5285), complete bony fixation of the spine (DC 5286), or ankylosis of the lumbar spine (DC 5289). Accordingly, the diagnostic codes pertaining to these disabilities are not applicable in the instant case. To obtain the next highest rating under the old diagnostic criteria of DC 5292 (40 percent), "severe" limitation of lumbar spine motion must be demonstrated. As noted above, "severe" limitation of lumbar spine motion is not defined. However, the 2003 regulatory revisions include ranges of motion of the lumbar spine that VA currently considers to be "normal." For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. In the instant case, the evidence as a whole supports a finding of "severe" limitation of lumbar spine motion under former DC 5292. A March 2003 letter from a private chiropractor indicates that when the Veteran presented for evaluation in December 2002, he had range of motion as follows: flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 15 degrees, and left lateral flexion to 25 degrees. Left and right lateral rotation were not measured. Although these measurements were taken prior to the effective date of service connection, given the proximity in time to the grant of service connection, they are demonstrative of the level of disability present at the time service connection was awarded. The range of motion of the Veteran's lumbar spine was not tested again until the June 2007 VA examination. Testing at that time revealed measurements consistent with those seen in December 2002. Range of motion testing revealed flexion to 38 degrees, decreased to 30 degrees post-repetitive motion; extension to 8 degrees, decreased to 0 degrees post-repetitive motion; left lateral flexion to 14 degrees, both pre- and post-repetitive motion; right lateral flexion to 14 degrees, both pre- and post-repetitive motion; left lateral rotation to 24 degrees, both pre- and post-repetitive motion; and right lateral rotation to 24 degrees, both pre- and post-repetitive motion. The Veteran complained of pain through the entire arc of motion in each plain. However, there was no apparent weakness, fatigability, or loss of coordination during or following three repetitions of range of motion. In describing the effects of his lumbosacral spine disability on his activities of daily living, the Veteran stated that he required the assistance of his wife in putting on his socks and shoes, as he could not perform any activities that required bending or twisting at the waist. VA clinical records dated in July 2007 show that the Veteran complained of a recent severe increase in back pain that made it difficult for him to walk and "get up and down." He described his back pain as an 8 on a scale of 10. Range of motion of the lumbar spine was not tested. On VA examination in December 2007, the Veteran was limited to 20 degrees flexion as a result of pain. He had extension to 5 degrees, and right and left lateral flexion to 10 degrees, with pain. He had no rotation. With minimal repetitive motion (3 repetitions), there was no change in range of motion, coordination, fatigue, endurance or pain level. The range of lumbar spine motion was not tested again until January 2009. On VA examination in January 2009, the Veteran had flexion to 40 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. All ranges of motion were limited by pain. With repetitive motion (3 repetitions), there was no change in the range of motion, coordination, fatigue, weakness, endurance, or pain level. VA clinical records dated in March 2009 show that the Veteran reported that his back pain was much worse. The range of motion of the lumbar spine was not evaluated; however, the examining physician noted the Veteran's complaint that he was unable to get out of the shower safely. VA clinical records dated in April 2009 show that the Veteran was able to ambulate independently with a cane. However, his gait was slow and labored, and his stride was shortened with a limp favoring the left. He had difficulty moving around the table and was prone to sitting posture aggravated by low back pain. He was noted to have difficulty with his standing posture, which was noted to be wobbly, with a widened stance. Passive prone flexion of the lower extremities was limited to 90 degrees by stretch and pain; active range of flexion was not tested. VA clinical records dated in April 2009 describe the range of motion of the Veteran's lumbar spine as "severely" diminished in all planes of motion, with resistance to performing rotation; the precise ranges of motion were not recorded. At his September 2010 Board hearing, the Veteran testified regarding the range of motion of his lumbar spine, reporting that he was unable to tie his shoes, as he could not bend at the waist as a result of his back pain. He also stated that he was unable to garden, and could not mow his lawn any longer, as riding on his lawn mower "jarred [his] back down to [his] ankles." He was unable to do any chores around the house. His wife testified that he was unable to walk without using his cane. The Veteran indicated that these limitations had been present for many, many years. Finally, on VA examination in December 2011, range of motion testing revealed flexion to 70 degrees; extension to 25 degrees; left and right lateral flexion to 25 degrees; and left and right lateral rotation to 25 degrees. The ends of motion were limited by pain. With repetitive motion (3 repetitions), there was no change in range of motion, coordination, fatigue, endurance or pain level. The Veteran was noted to use a walker to assist with ambulation. With the exception of range of motion testing conducted in December 2007, which unequivocally showed severe limitation of motion, the Veteran's lumbar spine range of motion is congruent with range of motion that is half of that which is considered normal, or better, as demonstrated on VA examination in December 2011. However, in determining the appropriate evaluation for the Veteran's lumbar spine range of motion under DC 5292, functional loss attributable to the service-connected disability must be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). At all times throughout the pendency of the appeal, the Veteran has reported that he is unable to bend at the waist in order to tie his shoes, and that his wife must assist him in donning and doffing his socks. On VA examination in December 2007 and in January 2009, the Veteran denied experiencing incoordination, but admitted experiencing fatigue and lack of endurance, noting that he could barely walk two-tenths of a mile to the mailbox, and that he had to rest several times in order to get to the mailbox. He is unable to ambulate without the assistance of a cane or walker, and cannot do any chores around the house. In other words, outside of a clinical setting, the lumbar spine range of motion is significantly worse than "normal." In considering the Veteran's competent and credible lay testimony regarding the longstanding nature of his limited range of motion on a daily basis, the Board concludes, resolving doubt in favor of the Veteran, that despite the "better" range of motion (flexion to 70 degrees) demonstrated on VA examination in December 2011, the evidence of record on balance suggests that throughout the pendency of the appeal, the functional loss associated with the Veteran's service-connected lumbosacral strain equates to "severe" limitation of motion of the lumbar spine. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Outside of the December 2011 VA examination, there is no evidence supportive of a finding that the Veteran's lumbosacral strain does not result in severe limitation of motion. 38 C.F.R. § 4.7 (2012). As such, an increased rating of 40 percent is warranted under the old diagnostic criteria of DC 5292 throughout the appeal period. Having determined that an increased rating of 40 percent is warranted under the old diagnostic criteria of DC 5292, the next inquiry is whether the remaining applicable diagnostic criteria may provide for a rating higher than 40 percent. Diagnostic Code 5295 does not provide for a rating higher than 40 percent. As such, DC 5295 may not serve as a basis for a higher rating. To the extent that the Veteran's service-connected lumbosacral strain is productive of disability contemplated by this diagnostic code, a separate rating under DC 5295 may not be awarded, as both DC 5292 and DC 5295 are premised upon limitation of motion. The assignment of disability ratings under both diagnostic codes would therefore amount to impermissible pyramiding. See 38 C.F.R. § 4.14 (2012). The remaining applicable diagnostic codes (DCs 5293 and 5243) are evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, by combining separate evaluations for the chronic and neurologic manifestations under 38 C.F.R. § 4.25, or under the General Rating Formula for Diseases and Injuries of the Spine. To obtain a rating higher than 40 percent under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion, the Veteran would have to demonstrate unfavorable ankylosis of the entire thoracolumbar spine. Ankylosis is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health, at 68 (4th ed. 1987). In the instant case, ankylosis has not been demonstrated. As discussed above, the most restricted measurement of forward flexion was exhibited by the Veteran at the December 2007 examination, at which time he was only able to flex his lower back to 20 degrees. Because the Veteran is able to move his thoracolumbar spine, his disability cannot be found to be analogous to ankylosis. On reviewing the various ranges of motion measured throughout the appeal period, the range of motion of the Veteran's lumbar spine falls squarely within the requirements for a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine: forward flexion greater than 30 degrees but not greater than 60 degrees; or combined range of motion not greater than 120 degrees. 38 C.F.R. § 4.71a, DCs 5237, 5243. As such, a rating higher than 40 percent may not be awarded on the basis of limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine. Turning next to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. There is no evidence that the Veteran was prescribed bed rest by a physician due to his service-connected back disability for at least six weeks during any one-year period of the rating period under consideration. At his September 2010 hearing before the Board, and on VA examination in December 2007, January 2009, and December 2011, the Veteran denied having been placed on bed rest for his service-connected back disability. Accordingly, he is not entitled to an increased rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As the Veteran is not entitled to a rating higher than 40 percent under the General Rating Formula for Diseases and Injuries of the Spine, and there is no evidence of incapacitating episodes, it is necessary to determine whether the Veteran may be entitled to a higher rating if chronic orthopedic and neurological manifestations are evaluated separately and combined with all other disabilities. As discussed above, the range of motion of the Veteran's spine warrants a rating of 40 percent under the old diagnostic criteria of DC 5292. This is the maximum rating available under DC 5292. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2012). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2012). The record reflects longstanding complaints of pain and numbness radiating into the lower extremities. Notably, the Veteran was diagnosed with diabetes mellitus in 1983, and it appears that at least a portion of his complaints of pain and numbness are related to diabetic peripheral neuropathy. For example, on VA peripheral nerves examination in July 2009, the examiner diagnosed the Veteran with bilateral lower extremity peripheral neuropathy that had been superimposed on diabetic peripheral neuropathy. No medical professional has distinguished the disability attributable to the neuropathy associated with the service-connected lumbosacral spine disability from that associated with the Veteran's nonservice-connected diabetes mellitus. To date, the AOJ has evaluated the Veteran's peripheral neuropathy as though it stems entirely from his service-connected lumbosacral spine disability. See August 2009 rating decision assigning separate 20 percent ratings for peripheral neuropathy of the right and left lower extremities, effective April 2, 2009. As the matter of distinguishing the disability attributable to the injury the Veteran sustained in service from the disability attributable to nonservice-connected diabetes mellitus is not within the province of the Board, and the AOJ thus far has rated the Veteran's peripheral neuropathy as stemming entirely from his service-connected disability, the Board will also evaluate all manifestations currently present as disability associated with the service-connected disability. See Colvin, 1 Vet. App. at 174; Mittleider, 11 Vet. App. at 182. Clinical evidence dated as early as April 1983 demonstrates complaints of severe back pain with radiation to both extremities, with associated numbness. Neurologic testing at that time revealed positive straight leg raising at 45 degrees. There was no focal or motor deficits noted, but the Veteran did complain of hypoesthesia of the lower extremities. The impression was no evidence of radiculopathy on clinical examination although historically the Veteran's symptoms were suggestive of nerve root irritation. On VA examination in December 1984, the Veteran complained of pain radiating from the lower back down across both gluteal regions and both sacroiliac regions. Strength testing of the lower extremities revealed 1+/4 weakness of the left extensor hallicus longus, on both sides. Pinprick testing demonstrated bilateral lower calf hypoesthesia, as well as lateral left foot border hypoesthesia. VA examination in December 1985 similarly demonstrated neurologic abnormalities. Straight leg raising was positive bilaterally at 40 degrees, and there was diminished sensation to pinprick over the left foot, ankle, and lower leg. Private clinical records dated in August 1991 show that the Veteran had a positive straight leg examination on the left at 40 degrees, and on the right at 60 degrees. VA clinical records dated in October 1995 show that the Veteran complained of "some bilateral lower extremity pain," and bilateral lower extremity weakness, left greater than right. A March 2003 letter from the Veteran's private chiropractor references neuropathy related to his lumbar spine disability but does not detail the nature and severity of the neuropathy. On VA examination in June 2007, the Veteran complained of left leg sciatic nerve distribution radicular pain and paresthesias. On neurologic examination, sensation was intact to light touch for all dermatomes of the bilateral lower extremities. Motor strength testing was 5/5 for all muscle groups of the bilateral lower extremities. Ankle reflexes were absent bilaterally; knee reflexes were intact and normal. Straight leg raising was positive on the left. On VA examination in December 2007, the Veteran again complained of pain that radiated from his lower back into his left leg down to the foot. He stated that the pain awoke him at night. On physical examination, the Veteran was unable to stand on his heels and toes to walk. He had no reflexes in his knees or ankles. Motor strength testing revealed weak extensor hallucis longus muscles bilaterally. He had bilateral positive straight leg raises at 30 degrees. Sensory examination was intact. On VA examination in January 2009, the Veteran reported that he had continued to experience lower back pain that radiated into his left lower extremity, and that this pain had become much worse in the past year. On physical examination, the Veteran was unable to stand on his heels and toes to walk. He had 1+ reflexes in his knees, and no reflexes in his ankles. Motor strength testing revealed weak extensor hallucis longus muscles bilaterally. He had bilateral positive straight leg raises at 30 degrees. Sensory examination demonstrated decreased pinprick on the dorsum of both the right and left feet. VA clinical records dated in April 2009 show that the Veteran was found to have decreased or absent deep tendon reflexes in the bilateral lower extremities. There was loss of vibration sense in the right lower extremity below the ankle, as compared to the left. Propioception of the left lower extremity was diminished as compared to the right. The Veteran had difficulty performing tandem gait stand for more than five seconds with his eyes closed without losing balance. He was unable to stand on his heels or toes without immediately losing his balance. Motor strength testing revealed decreased strength in the left lower extremity. At his September 2010 Board hearing, the Veteran stated that he routinely experienced a constant, heavy pain that radiated from his lower back into his lower extremities, particularly the left. The Veteran indicated that this pain had been present for many years. He also stated that he had fallen on a number of occasions as a result of instability he associated with his back disability. Finally, on VA examination in December 2011, motor testing revealed 5/5 strength in all lower extremity joints tested. There was no evidence of muscle atrophy. Deep tendon reflexes measured 2+ (normal) in each knee and ankle. Sensory examination similarly was normal. Straight leg raising was negative bilaterally. The examiner commented that there was no evidence of radicular pain or any other signs or symptoms due to radiculopathy, and no other neurologic abnormalities or findings related to the back disability. Notably, the examiner commented that the Veteran's current back complaints were not related to the injury he sustained in service. The evidence of record supports a conclusion that the Veteran has had bilateral radiculopathy throughout the pendency of the appeal. Clinical evidence dated prior to the effective date of service connection is consistent in demonstrating the Veteran's subjective complaints of low back pain that radiated into both lower extremities, and objective findings of diminished sensation in both lower extremities. There is no clinical evidence pertaining to neurologic findings dated between April 21, 2003, the effective date of service connection, and the June 22, 2007 VA examination. However, the Veteran's written statements and oral representations at the time of the September 2010 Board hearing support a finding that he continued to experience sensory disturbances related to his lumbar spine disability, such that the neurologic manifestations of his service-connected disability warrant the assignment of separate ratings under DC 8520 for the entire appeal period. In determining the appropriate evaluations for the neurologic manifestations of the Veteran's service-connected lumbosacral strain, the Board relies heavily upon the Veteran's September 2010 hearing testimony. At his September 2010 hearing, the Veteran reported longstanding complaints of radiating pain and numbness into both lower extremities, and instability of his lower extremities, occasionally resulting in falls. His representations in this regard are substantiated by the findings of the June 22, 2007, VA examination. Although there is no clinical evidence demonstrating the severity of the Veteran's peripheral neuropathy between April 21, 2003, and June 22, 2007, the Veteran's competent and credible testimony supports a finding that the neurologic component of his disability prior to June 22, 2007, was no better than that which was demonstrated on June 22, 2007. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (holding that "the Board erred by treating the absence of evidence as negative evidence that the Veteran's skin condition was not exceptionally repugnant, because this is not a situation where silence in the records tends to disprove the fact"); see also Fed. R. Evid. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded) (cited in Buczynski). Crucially, there is no conflicting lay or medical evidence of record. The absence of neurologic findings in the instant case is of no probative value, as the absence of such findings appears to be related to the Veteran not having sought treatment for his back for the period between April 21, 2003, and June 22, 2007, rather than as a result of an absence of symptoms. The June 22, 2007, VA examination demonstrates that the Veteran's service-connected lumbosacral strain is productive of bilateral radiculopathy that results in decreased sensation and impaired reflexes in both extremities. His symptoms are primarily sensory in nature and compatible with an incomplete paralysis of the sciatic nerve that is no more than moderate in degree, consistent with the assignment of separate 20 percent ratings under DC 8520. There is no evidence of organic changes, such as muscle atrophy, that would warrant higher ratings or demonstrate more than a moderate degree of incomplete paralysis of the sciatic nerve. See 38 C.F.R. § 4.123 (2012). However, because of the evidence showing absent ankle jerk reflexes, and, on occasion, absent knee reflexes, the Board finds that the level of incomplete paralysis is more than mild, but not more than moderate. In making this determination, the Board recognizes that the December 2011 VA examination documented normal neurological findings. However, such findings are entitled to little probative weight, as they are inconsistent with the remainder of the record and appear to be reflective of the examiner's opinion overall that the current manifestations of the Veteran's lumbar spine disability are not attributable to the injury he sustained in service. As the question of the degree of disability attributable to the in-service injury was not before the examiner, and the remainder of the record is consistent in the documentation of complaints and objective findings of neurologic abnormalities related to the back disability, the "normal" findings documented at the time of the December 2011 VA examination are accorded minimal weight. Having determined that separate ratings for the neurologic manifestations of the Veteran's service-connected lumbosacral strain are warranted, the question before the Board is whether the Veteran's disability rating would be higher when his disability is rated under Diagnostic Code 5243, than it is under the old diagnostic criteria of DC 5293. Taking into consideration the bilateral factor, a 40 percent rating under DC 5293, and separate 20 percent ratings under DC 8520 provide for a combined disability rating of 60 percent. When rating the Veteran's disability under DC 5243, the Veteran is entitled to a combined disability rating of 50 percent (20, 20 and 20), taking the bilateral factor into consideration. See 38 C.F.R. §§ 4.25, 4.26 (2012). Thus, the assignment of a 40 percent rating under DC 5293, and separate 20 percent ratings under DC 8520 provides a greater combined disability rating than the assignment of a 20 percent rating under DC 5243, along with separate 20 percent ratings under DC 8520. Because the diagnostic criteria in effect at the time the Veteran filed his claim provide for a more favorable disability, his disability will be evaluated on the basis of the old diagnostic criteria of DC 5293. The Board has also considered whether the Veteran could be assigned a separate compensable rating based on surgical scars associated with his service-connected lumbar spine disability. The criteria for rating scars were revised, effective October 23, 2008. The 2008 revised criteria apply only to claims filed on or after October 23, 2008 unless the Veteran requests that the AOJ review his evaluation under the 2008 revised criteria. As the Board is raising the matter of whether the Veteran is entitled to a separate rating for the surgical scars as a part of determining the appropriate evaluation for the lumbar spine disability, the Veteran did not have an opportunity to request review under the currently effective rating criteria. Therefore, to ensure there is no prejudice to the Veteran, the Board will consider both the old and revised criteria in determining whether the Veteran is entitled to a separate rating for the surgical scars. VAOPGCPREC 3-2000 (Apr. 10, 2000). The pertinent rating criteria effective prior to and from October 23, 2008 are similar. Under the criteria effective prior to October 23, 2008, a 10 percent rating was warranted for a superficial scar that was either painful or unstable (frequent loss of covering of the skin over the scar). 38 C.F.R. § 4.118, Diagnostic Codes 7803 and 7804 (effective prior to October 23, 2008). Under the criteria effective from October 23, 2008, a 10 percent rating is warranted for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (effective October 23, 2008). There is no evidence that the Veteran's lumbar spine surgical scars are painful or unstable. On VA examination in June 2007, the examiner noted a 7 cm surgical scar overlying the lumbar spinous process. The scar was nontender and well healed without sign of inflammation, infection, depression, or keloid formation. On VA examination in December 2007, the Veteran was observed to have a 12 cm midline scar which was well healed, and a 10 cm donor site scar that was also well healed. On VA examination in January 2009, the examiner noted a 15 cm midline scar which was noted to be well-healed and non-ulcerated. No instability or pain was noted. Finally, on VA examination in December 2011, the Veteran's scar was not discussed, as the examiner believed the surgical scar to be unrelated to the Veteran's service-connected disability, i.e., unrelated to the injury he sustained in service. Although the length and number of surgical scars observed have varied during the pendency of the appeal, the descriptions of the scars otherwise has remained consistent: the surgical scars are essentially asymptomatic. As such, a preponderance of the evidence is against a finding that a separate compensable rating for the scars is warranted. The Board has considered whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (holding that "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings). The symptoms associated with the Veteran's service-connected lumbosacral strain have not undergone any significant increase or decrease so as to warrant a rating in excess of 60 percent at any time during the appeal period. Accordingly, staged ratings are not warranted. III. Extra-Schedular Considerations The Board has also considered whether referral for an extraschedular rating is appropriate. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (2012). Related factors include "marked interference with employment" and "frequent periods of hospitalization." Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Veteran's lumbar spine disability primarily involves pain and limitation of motion. As a result of pain and limitation of motion, he is unable to bend at the waist in order to tie his shoes, and his wife must assist him in donning and doffing his socks. He routinely experiences fatigue and lack of endurance, and is unable to ambulate without the assistance of a cane or walker. He cannot do any chores around the house. Such impairment is specifically contemplated by the rating criteria (limitation of motion and neurologic manifestations) and the Veteran has been evaluated on that basis. Hence, the rating criteria reasonably describe the Veteran's disability. In short, there is no indication in the record that the average industrial impairment from the Veteran's lumbar spine disability would be in excess of that contemplated by assigned ratings; the Veteran's disability picture is not shown to be exceptional or unusual. Therefore, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In summary, for the reasons and bases expressed above, the Board concludes that, for the entire period on appeal, an increased combined disability rating of 60 percent is warranted (40 percent under former DC 5292, 20 percent under DC 8520 for neurological manifestations affecting the right lower extremity, and 20 percent under DC 8520 for neurological manifestations affecting the left lower extremity). The appeal is granted to that extent. IV. TDIU TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); Norris v. West, 12 Vet. App. 413, 420 (1999). A TDIU claim is an alternative way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See, e.g., Parker v. Brown, 7 Vet. App. 116, 118 (1994). As the Veteran alleges that he is unable to work as a result of his service-connected lumbar spine disability, the claim of entitlement to TDIU is encompassed within this claim for an increased initial rating and the Board appropriately has jurisdiction over the TDIU claim. There is no prejudice to the Veteran in adjudicating his claim of entitlement to TDIU, given the favorable disposition of the claim. See Bernard, 4 Vet. App. at 393-94. A TDIU rating may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In the instant case, as a result of the decision above granting the Veteran an increased rating for his service-connected lumbar spine disability, the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) throughout the appeal period. The Veteran is also service-connected for bilateral hearing loss, evaluated as 10 percent disabling, effective January 1, 2012. As the Veteran meets the schedular criteria for TDIU consideration under 38 C.F.R. § 4.16(a), the Board's inquiry turns to whether he is able to secure or follow a substantially gainful occupation. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). An April 1986 Order by the Social Security Administration reflects that the Veteran was determined to be disabled by that agency as of February 22, 1983. The decision awarding the Veteran disability benefits is not of record. However, evidence that is contained within the record demonstrates that the Veteran was determined to be disabled as a result of his lumbar spine disability, and that the Veteran continues to be unable to work as a result of his back disability at the present time. The December 2011 VA examiner found that the Veteran's service-connected lumbosacral strain had no effect on his employability. However, for the reasons explained above, the Board accords no probative weight to this opinion. Resolving any remaining doubt in favor of the Veteran, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected lumbosacral strain disability. 38 U.S.C.A. § 5107(b) (West 2002). Entitlement to TDIU is therefore granted. ORDER An increased initial rating of 40 percent for service-connected lumbosacral strain is granted for the entire period on appeal, subject to the laws and regulations governing the payment of monetary benefits. A separate 20 percent rating for moderate incomplete paralysis of the sciatic nerve of the right lower extremity is granted for the entire period on appeal, including prior to April 2, 2009, subject to the law and regulations governing payment of monetary benefits. A separate 20 percent rating for moderate incomplete paralysis of the sciatic nerve of the left lower extremity is granted for the entire period on appeal, including prior to April 2, 2009, subject to the law and regulations governing payment of monetary benefits. Entitlement to TDIU is granted for the entire period on appeal, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ Donnie R. Hachey Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs