Citation Nr: 1315217 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 05-35 724A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for residuals of a fracture to L2 with abdominal wall discomfort (hereinafter lumbar spine disability). 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active duty service from November 1992 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2005 and August 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina; which denied an increased rating for residuals of fracture to L2 with abdominal wall discomfort, then rated as 20 percent disabling; and entitlement to TDIU, respectively. The Veteran timely appealed those issues. This case was initially before the Board in November 2009, February 2011, August 2011, and October 2012 at which time it was remanded for further development including VA examination. By rating action in January 2013 the Appeals Management Center, granted separate 20 percent ratings for radiculopathy of the left and right lower extremities, and a 10 percent rating for thoracic spine strain; TDIU was granted from October 25, 2007 to January 6, 2011; and increased the rating for residuals of a fracture to L2 with abdominal wall discomfort (hereinafter lumbar spine disability) to 30 percent, effective December 12, 1997. The lumbar and thoracic spine ratings were premised on the receipt of new service treatment records. 38 C.F.R. § 3.156(c). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The residuals of a fracture to L2 with abdominal wall discomfort (lumbar spine disability) manifested by moderate limitation of motion with demonstrable deformity from a spinal fracture but without listing of the entire spine or additional neurologic impairment other than moderate neuritis of the external popliteal nerves. 2. Service connection is in effect for residuals of a fracture to L2 with abdominal wall discomfort (hereinafter lumbar spine disability), evaluated as 30 percent disabling; residuals of left shoulder separation, evaluated as 30 percent disabling; right lower extremity radiculopathy, evaluated as 20 percent disabling; left lower extremity radiculopathy, evaluated as 20 percent disabling; thoracic spine strain, evaluated as 10 percent disabling. The total combined disability rating assigned is 70 percent, effective March 4, 2005. 3. The Veteran's service connected disabilities rendered him unemployable from March 4, 2005 to January 6, 2011; but not since January 6, 2011. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a lumbar spine disability described as residuals of a fracture to L2 with abdominal wall discomfort have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5285, 5292, 5237 (2003 & 2012). 2. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities were met from March 4, 2005 to June 6, 2011, but have not been met for any period other than from October 25, 2007 to January 6, 2011. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.41, 4.3, 4.16(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a) (1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A (b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b) (1). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent letters in April 2005, and March and June 2011, subsequent to the initial adjudication of the claims, the RO notified the Veteran of the evidence needed to substantiate his claims for an increased rating and TDIU. VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claims, this timing deficiency was cured by the issuance of VCAA notice followed by readjudication of a September 2012 supplemental statements of the case (SSOC). Mayfield v. Nicholson, 499 F. 3d 1317 (Fed. Cir. 2007). Therefore, any timing deficiency has been remedied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been given adequate VA examination in February 2012. The examination report was thorough and contains necessary findings to base a decision with regard to the Veteran's claims. The examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claims. Brief but relevant and important opinions were provided. The Board finds the opinions to be adequate, as they were predicated on a full reading of the claims file and the Veteran's own statements. Therefore, the Board finds that no further action is necessary in this regard. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. The purpose of the November 2009 examination was to afford the Veteran an examination to evaluate his back disability; the February 2011 remand sought to obtain information with regard to private and VA treatment, and to obtain records of any physician ordered bed rest; the August 2011 remand was for efforts to obtain employment records, afford a VA examination, and development of the TDIU issue under 38 C.F.R. § 4.16(b) (2012). The October 2012 remand sought to correct deficiencies in the examination that resulted from the November 2011 remand and for referral of the TDIU issue under 38 C.F.R. § 4.16(b), if warranted. The agency of original jurisdiction (AOJ) ultimately obtained all available records identified by the Veteran, obtained examination findings requested by the Board, and granted TDIU for all periods when the Veteran was unemployed. This essentially complied with the remand instructions. The most recent remand clarified that referral under § 4.16(b) was required only if there were periods when the Veteran was unemployed but didn't meet the percentage requirements for TDIU. The AOJ's decision means that there were no periods when the Veteran was unemployed, but did not meet the percentage requirements. II. Legal Criteria-Increased ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, in claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) Although this appeal arose from decisions made by the RO in 2005, the AMC has treated the appeal as relating to the January 1998 rating decision that initially granted service connection for the back disability, effective December 19, 1997. This decision was made under the provisions of 38 C.F.R. § 3.156(c), which provide that if certain service department records are received after a decision on a claim, the records will be considered as having been received in conjunction with the original claim and the original claim will in essence be readjudicated. The new service department record, according to the AMC, consisted of a DD 214, received on June 9, 1999. As discussed below, VA altered the criteria for rating back disabilities twice since 1997. Because the rating criteria changed during the pendency of the veteran's appeal, the question arises as to which set of rating criteria applies. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (the rule of Karnas v. Derwinski, 1 Vet. App. 308 (1991), that the version most favorable to the claimant be applied when there has been a change in rating criteria has been overruled to the extent that it conflicts with authority established by the Supreme Court and United States Court of Appeals for the Federal Circuit); see also VAOPGCPREC 7-2003. "[C]ongressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Landgraf v. USI Film Prods. 511 U.S. 244, 272 (1994) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)); Dyment v. Principi, 287 F.3d 1377, 1385 (Fed. Cir. 2002), and Bernklau v. Principi, 291 F.3d 795, 804 (Fed. Cir. 2002). The Court has held that the law "precludes an effective date earlier than the effective date of the liberalizing...regulation," but the Board must, nonetheless, still adjudicate whether a claimant "would receive a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation." DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Accordingly, the Board has the duty to adjudicate the appellant's claim under the old regulation for any period prior to the effective date of the new diagnostic codes, as well as under the new diagnostic code for the period beginning on the effective date of the new provisions. A liberalizing law will generally be held to have no retroactive effects. VAOPGCPREC 7-2003. Thus if the veteran could receive a more favorable result under the new rating criteria it would not have a retroactive effect, and could be applied from its effective date. Under the criteria in effect prior to September 23, 2002, a 10 percent rating was assigned for mild symptoms of intervertebral disc syndrome. A 20 percent rating was assigned for moderate intervertebral disc syndrome, with recurring attacks. Severe intervertebral disc syndrome, with recurring attacks, with intermittent relief, warranted a 40 percent evaluation. A 60 percent rating was warranted for symptoms of intervertebral disc syndrome if pronounced and resulting in little intermittent relief; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc 38 C.F.R. § 4.71, Diagnostic Code 5293 (2002). Effective September 23, 2002, the provisions of Diagnostic Code 5293 were altered so that intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes 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 results in the higher evaluation. With incapacitating episodes having a total duration of at least one week, but less than 2 weeks, during the past 12 months a 10 percent rating will be assigned. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Prior to September 26, 2003, Diagnostic Code 5292 provided that slight limitation of motion in the lumbar spine warrants a 10 percent evaluation. Moderate limitation of motion of the lumbar spine warrants a 20 percent rating and a 40 percent rating is warranted for severe limitation of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Prior to September 26, 2003, Diagnostic Code 5295 provides a maximum disability rating of 40 percent for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with Osseo- arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). The veteran cannot be assigned separate ratings under Diagnostic Codes 5292 and 5295 for the period prior to September 26, 2003. That is because the criteria for a 40 percent rating under Diagnostic Code 5295 include marked limitation of motion--the same criteria for a 40 percent rating under Diagnostic Code 5292. He cannot be compensated twice for the same symptomatology, so one rating is appropriate. 38 C.F.R. § 4.14. The old provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5285 provide for a 100 percent rating for residuals of a vertebra fracture with cord involvement, the Veteran is bedridden, or requires leg braces. That code provides a 60 percent rating without cord involvement, but with abnormal mobility requiring a neck brace (jury mast). In other cases, such fracture residuals were to be rated on the basis of limitation of motion or muscle spasm, adding 10 percent for demonstrable deformity of a vertebral body. The newest rating criteria, effective September 26, 2003, provide for rating the veteran's low back disability under criteria contained in the General Rating Formula for Diseases and Injuries of the Spine as follows: (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the revised criteria a 100 percent scheduler evaluation is assigned if there is unfavorable ankylosis of the entire spine. A 50 percent rating is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is assigned if there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 68 Fed. Reg. 51,456-7 (Aug. 27, 2003) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243). The September 26, 2003 changes left intact the criteria for rating intervertebral disc disease, but renumbered the diagnostic code for that disability from 5293 to 5243. Of course, the General Rating Formula provided new criteria for rating the orthopedic component of intervertebral disc disease. Disabilities of the spine are currently evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The criteria of the General Rating Formula are applied with and 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. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The General Rating Formula pertinent to the thoracolumbar spine provide a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A rating of 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 80 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm and guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 40 percent is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right later rotation is 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. General Rating Formula, Note (2). Intervertebral Disc Syndrome (IVDS), Code (5243), is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two week but less than four weeks during the past twelve months, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Code 5243. VA regulations provide that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. IVDS Formula Note (1). TDIU It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a) (1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2012). A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2012). III. Background Service records reveal the Veteran suffered a fractured L2 vertebra in a motor vehicle accident in 1995. He underwent a medical board which found him unfit for full duty due to pain associated with compression fracture L2 disc. He was subsequently medically discharged from service. At a VA examination in October 1997, the Veteran reported mild to moderate distress from intermittent pain and stiffness in his back. Straight leg raising caused pain at 80 degrees. He could flex forward to 80 degrees until he felt pain. Deep tendon reflexes were 1+. The pertinent assessments were thoracic and lumbar back strain and abdominal wall pain secondary to the back strain. At an April 2005 VA examination, the Veteran reported constant sharp lower back pain which radiated to both buttocks and thighs. He denied surgery or injection. He took Tramadol. A back brace did not help and he reported that physical therapy and a chiropractor made it worse. He reported flare-ups occurring 2-3 times daily and lasting hours. He was not currently employed. He reported losing numerous jobs due to back pain. It affected his occupational functioning with lower back pain when performing any job duties. It also affected his activities of daily living. On examination, the examiner noted that the Veteran maintained a constant 35 degree flexion of the thoracolumbar spine for pain relief. The VA examiner noted no ankylosis of the thoracolumbar spine. The range of motion (ROM) was flexion to 75 (only 40 degrees from resting position); extension to -20 degrees (only 15 degrees ability in extension from resting position); right and left lateral flexion to 12 degrees; and, right lateral flexion and left lateral rotation to 30/10 degrees. After repetition the Veteran maintain a 15 degree resting flexion. ROM was flexion to 90 (70 degrees from resting position); extension to 10 degrees (25 degrees ability in extension from resting position); right and left lateral flexion to 25 degrees; and, right and left lateral rotation to 45/30 degrees. All motion with pain. There was no guarding or spasms. There was tenderness to palpation of the midline and paraspinal muscles. Muscle strength was 5/5 throughout. Sensory and neurological examinations were normal. A March 2005 VA MRI revealed L2 vertebral body demonstrated a mild anterior wedge shaped deformity without evidence of vertebral endplate deformity. The examiner noted a possible developmental wedging of the vertebral body as there appeared to be less substance to the vertebral body or potentially very remote compression fracture. At a December 2009 VA examination, the examiner noted the claims file and medical records were reviewed. Lumbar spine pain began in 1995 after a motor vehicle accident. He was diagnosed with a compression fracture of L2 vertebrae. He was discharged from service after a medical board. He has continued to have pain. He had daily pain which never goes away. It averaged 7/10 on a scale of 10. It radiated to the bilateral lower extremities and at times affected his ability to walk. He reported one incapacitating episode within the past 12 months for which he reportedly was prescribed bed rest. He has had no back surgery or injections. He has had physical therapy with improvement. He was employed at an electrical company and was able to do his job daily. He was only incapable of working during flare ups. These occurred approximately every 3 months and were brought on by lifting or cold weather. They resolved after several days rest and medication. He occasionally used a back brace and cane. He denied any affect on activities of daily living. On examination, the range of motion (ROM) of the thoracolumbar spine was flexion to 76 degrees; extension to 10 degrees; right and left lateral flexion to 25 degrees; and, right and left lateral rotation to 40 degrees with pain throughout. There was no additional limitation of motion following repetitive use. There was tenderness or pain on palpation of the thoracolumbar spine. There was no muscle spasm or guarding. Muscle strength was normal and there was no atrophy. Reflexes and sensory examination were normal. At a February 2012 VA examination, the examiner reviewed the claims file and medical records. The Veteran reported flare ups in which he described difficulty showering and getting in and out of the bathtub; difficulty driving or with prolonged sitting. On examination, ROM of the thoracolumbar spine was flexion to 50 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees; and, right and left lateral rotation to 30 degrees with pain at end points throughout. There was no additional limitation of motion following repetitive use. There was tenderness or pain on palpation of the thoracolumbar spine. There was no muscle spasm or guarding. Muscle strength was normal and there was no atrophy. Reflexes and sensory examination were normal. There was no radiculopathy. The examiner found no neurological abnormalities. There was IVDS to the thoracolumbar spine but there were no incapacitating episodes within the past 12 months. X-rays revealed no arthritis. The L2 fracture and DDD were identified. The examiner found no functional impact on the Veteran's occupational functioning as he was currently working 40 hours a week and had not missed a day's work in 7-8 months. The examiner noted that he was able to work as required with light to moderate activities and lifting. He could also perform completely sedentary work such as clerical work. An addendum to the VA examination added that the Veteran had no additional limitation in ROM following repetition. At the time of examination he had been packing ball bearings 40 hours a week and had not missed a day of work in the past 12 months. There was no evidence in the treatment records that this assessment of the Veteran's capabilities or limitations was any different for the time period specifically referenced in the remand. IV. Analysis- Incapacitating episodes of disc disease are not shown. While the Veteran in the December 2009 VA examination reported one incapacitating episode within the past 12 months for which he was prescribed bed rest; this was not shown by the record. Thoracolumbar forward flexion has consistently been greater than 30 degrees, and ankylosis of the thoracolumbar spine has not been shown. In fact at the April 2005 VA examination forward flexion was 75 degrees, and the combined ROM of the thoracolumbar spine was 159 degrees; at the December 2009 VA examination it improved to, flexion to 76 degrees, and the combined ROM of the thoracolumbar spine was 226 degrees; at the February 2012 VA examination, flexion was 50 degrees, and the combined ROM of the thoracolumbar spine was 200 degrees. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). On examinations, the Veteran recently reported having pain throughout with motion on the examinations. He reported flare-ups. Ranges of motion were unchanged after repetitive motion and there was not additional limitation due to other functional factors. Hence, a higher rating is not warranted on the basis of functional impairment. The Veteran has not been found to have muscle spasm or guarding. The spine has not been ankylosed. The forward flexion of the thoracolumbar spine has never been shown to be 30 degrees or less. The disability picture presented does not warrant a rating in excess of the currently assigned 30 percent under current criteria. The new rating criteria require consideration of additional disability due to neurologic impairment. The Veteran has been provided two 20 percent ratings for radiculopathy of the lower extremities, under Diagnostic Codes 8621, which contemplate moderate incomplete paralysis or neuritis of the external popliteal nerves. He has not disputed these ratings, and there is no indication of severe disability or other neurologic impairment related to the back disability. The 30 percent rating is provided on the basis of a 20 percent rating for moderate limitation of motion under old Diagnostic Code 5292 with the addition of 10 percent for demonstrable deformity. The ranges of motion reported during the appeal period have shown that the Veteran has retained at least half of the normal range of motion, even with consideration of functional factors. Hence, the limitation has not been more than moderate. The disability has not required bedrest, leg braces, cord involvement or a neck brace or jury mast. It therefore does not warrant a higher rating under Diagnostic Code 5285. A higher rating is potentially available for strain under Diagnostic Code 5295. The Veteran; however, does not have listing of the entire spine or abnormal mobility on forced motion. V. TDIU In this case, the Board finds that the criteria for a TDIU have not been met for any period other than from October 25, 2007 to January 6, 2011. As discussed above, the Veteran's residuals of a fracture to L2 is evaluated as 30 percent disabling; residuals of left shoulder separation, is evaluated as 30 percent disabling; right and left lower extremity radiculopathy are each evaluated as 20 percent disabling; and, thoracic spine strain, is evaluated as 10 percent disabling. The Veteran does not have a disability rating of at least 40 percent for one disability; but they are of a common etiology and have a total combined disability rating assigned of 70 percent; hence he met the percentage requirements of 38 C.F.R. § 4.16(a) since March 4, 2005. The October 1997 VA examination indicates that the Veteran was employed. In an undated statement received at the RO on March 28. 2005, the Veteran reported an inability to keep a job due to the effects of his back disability. In a March 2005, TDIU claim form he indicated that he had become too disabled to work in June 2002, and had last worked full time in December 2003. However, he reported gainful employment that extended to August 2004. Another employer subsequently reported that the Veteran had been working 40 hours per week from November 2003 to March 2004. Because the Veteran met the percentage requirements and the weight of the evidence was that the Veteran's service connected disabilities rendered him unemployable; TDIU was warranted from March 4, 2005. In a February 2012 VA examination the examiner noted that the Veteran was employed by a "temp agency". He had been working packing ball bearings full time, 40 hours a week, and 8 hours a day for the past 7 to 8 months and had not missed any days from work. The examiner noted that the Veteran was therefore able to perform work requiring light to moderate activities and lifting. He could also perform completely sedentary work such as clerical work. In an August 2012 employment information request form, the Veteran's employer noted that he had been working from July 3, 2006 to August 4, 2010 when he had been terminated from a painting and packing job due to quality issues. He had been employed at that time 10 hours a day for 40 hours a week. In a telephone contact dated in January 2013, the Veteran informed the VA that he had returned to work as of January 6, 2011. He reported that the firing from his previous job was due to his back and shoulder disability. The RO by rating action in January 2013, granted TDIU from October 25. 2007 to January 6, 2011. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that he is unable to work due to his service connected disabilities. As it has been shown by the records including the Veteran's admission that he had returned to work full time at an 8 hour a day/40 hour a week job as of January 6, 2011, he no longer met the criteria for TDIU as of that date. The current evaluations for the Veteran's service connected disabilities are intended to compensate for a significant level of industrial impairment. The Board also acknowledges that the Veteran graduated high school, and that his civilian work included being a mail handler, paint sprayer, and assembler. He had performed work as a machine operator, paint mixer, and in electrical assembly. (April 2005, TDIU claim). However, the evidence does not support a finding that the Veteran's service connected disabilities have rendered him unable to secure or follow a substantially gainful occupation since June 6, 2011. In that regard, the Board notes that the Veteran is currently employed with a temp agency and still working in similar positions, assembling and/or packing of ball bearings. In summary, the evidence demonstrates that the Veteran is currently employed, thus his service connected disabilities alone do not render him unemployable. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2011). Accordingly, a TDIU, from January 6, 2011 is denied. VI. Extraschedular considerations The Board must also determine whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b) (1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b) (1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluations are not inadequate. Evaluations in excess of the ones assigned are provided for certain manifestations of the service-connected disorders, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders. As the rating schedule is adequate to evaluate the disabilities, referral for extra-schedular consideration is not in order. ORDER A disability rating greater than 30 percent for a lumbar disability described as, residuals of a fracture to L2 with abdominal wall discomfort is denied. TDIU is granted from March 4, 2005 to January 6, 2007; but denied for the period beginning January 7, 2011 REMAND The Board has repeatedly instructed that the claim for TDIU should be referred to the Director of VA's Compensation and Pension Service (Director of C&P) for adjudication for any periods when the Veteran was unemployed but did not meet the percentage requirements of 38 C.F.R. § 4.16(a). The evidence shows that the Veteran was unemployed from August 2004 to March 2005, but did not meet the percentage requirements for TDIU. The Board is required to remand this issue for such adjudication. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran also reported that he had received Vocational Rehabilitation benefits in 1999 and 2000. The Vocational Rehabilitation records are potentially relevant. Accordingly, this case is REMANDED for the following: 1. Associate the Veteran's VA Vocational Rehabilitation folder with the claims file. 2. Refer the case to the Director of C&P for adjudication of the Veteran's claim for entitlement to TDIU during the period from August 2004 to March 2005, in accordance with the provisions of 38 C.F.R. § 4.16(b). 3. If the appeal is not fully granted, issue a supplemental statement of the case, before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs