Citation Nr: 1318348 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 06-38 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES Entitlement to an initial disability rating in excess of 40 percent for status post L5-S1 disc removal and fusion, to include entitlement to a total rating based on individual unemployability due to service-connected disability prior to November 18, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty in the United States Marine Corps from June 1992 to October 1997, and in the United States Army from April 2000 to December 2004. This matter came to the Board of Veterans' Appeals (Board) on appeal from October 2005 and March 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In the October 2005 rating decision, the RO granted service connection for status post L5-S1 disc removal and fusion and assigned an initial 20 percent disability rating, effective December 7, 2004, the day following the appellant's separation from active service. In the March 2006 rating decision, the RO confirmed the initial 20 percent rating assigned for the appellant's service-connected low back disability and denied a total rating based on individual unemployability due to service-connected disability. In December 2006, the appellant perfected an appeal with respect to the initial rating assigned for his service-connected status post L5-S1 disc removal and fusion, including the denial of a total rating based on individual unemployability. In October 2010 and April 2012, the Board remanded the matter for additional evidentiary development and due process considerations. A review of the record shows that the RO has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Neither the appellant nor his representative has argued otherwise. The Board notes that while the matter was in remand status for the first time, in a December 2011 rating decision, the RO granted service connection for two separate neurological disabilities associated with the appellant's service-connected low back disability -- left sided lower extremity radiculopathy and a neurogenic bladder disability, and assigned each of these disabilities an initial 10 percent rating, effective February 18, 2010, and November 18, 2010, respectively. The appellant did not initiate an appeal with respect to the RO's determinations. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, these issues are not before the Board on appeal. While the matter was in remand status for the second time, in a February 2013 determination, VA's Director of Compensation and Pension Services denied a total rating based on individual unemployability due to service-connected disability on an extraschedular basis. See 38 C.F.R. § 4.16(b) (2012). Additionally, in a subsequent February 2013 rating decision, the RO increased the initial rating for the appellant's status post disc removal and fusion to 40 percent, effective December 7, 2004. Although a higher initial rating was granted, the issue of entitlement to an initial rating in excess of 40 percent for this disability remains in appellate status, as the maximum schedular rating has not been assigned nor has the appellant withdrawn his appeal with respect to this issue. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Also in the February 2013 rating decision, the RO increased the initial rating for the appellant's service-connected left sided lower extremity radiculopathy to 80 percent, effective February 18, 2010, and granted a total rating based on individual unemployability due to service-connected disability, effective November 18, 2010. Although a total rating based on individual unemployability due to service-connected disability was awarded effective November 18, 2010, the issue of the appellant's entitlement to a total rating based on individual unemployability prior to that date remains in appellate status as it is part and parcel of the claim for a higher initial rating for his service-connected low back disability. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Moreover, because the issue of a total rating based on individual unemployability on an extraschedular basis has been considered by the Director of Compensation and Pension, the Board may now consider that issue on appeal. See Bowling v. Principi, 15 Vet. App. 1 (2001); see also Anderson v. Shinseki, 22 Vet. App. 423, 429 (2009) (holding the Board did not exceed its authority when it reviewed a determination by the Director of Compensation and Pension denying an extraschedular rating under 38 C.F.R. § 3.321(b)). In view of the foregoing, the Board has characterized the issue on appeal as set forth on the cover page of this decision. Finally, the Board notes that the record on appeal contains clinical evidence suggesting that the appellant may have a psychiatric disability secondary to his service-connected low back disability. See e.g. VA clinical record of March 26, 2006, noting a diagnosis of a mood disorder secondary to post-laminectomy syndrome; and VA clinical record of February 27, 2008, noting diagnoses of secondary rage attacks, obsessive-compulsive disorder, depression, social phobia, and agoraphobia. The record currently available to the Board contains no indication that the RO has addressed the issue of entitlement to service connection for a psychiatric disability secondary to the service-connected low back disability. Thus, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action. FINDINGS OF FACT 1. Since December 7, 2004, the effective date of the award of service connection, the appellant's service-connected low back disability has been manifested by symptoms which include severe pain, limitation of motion, and functional loss. At no time during this period, however, has he been shown to have unfavorable ankylosis of the entire thoracolumbar spine nor was his service-connected low back disability shown to be manifested by incapacitating episodes of intervertebral disc syndrome totaling at least 4 weeks in any 12-month period. 2. Since December 13, 2005, the appellant's service-connected status post L5-S1 disc removal and fusion has prevented him from maintaining substantially gainful employment; prior to that date, the appellant was gainfully employed on a full-time basis and the evidence does not show, nor has the appellant contended, that he was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial schedular rating in excess of 40 percent for status post L5-S1 disc removal and fusion have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2012). 2. The criteria for a total rating based on individual unemployability due to service-connected disability on an extraschedular basis have been met from December 13, 2005. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). With respect to VA's notice obligations, because the matter at issue in this case concerns an appeal of an initial rating, VCAA notice obligations were fully satisfied once service connection was granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) (holding that once a decision awarding service connection and assigning a disability rating and an effective date has been made, the section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated). The record does not show, nor does the appellant contend, that any notification deficiencies have resulted in prejudice. See Goodwin v. Peake, 22 Vet. App. 128 (holding that the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements such as the disability rating and effective date). With respect to VA's duty to assist, the Board finds that no further action is necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The appellant's service treatment records are on file, as are all available and relevant post-service records which the appellant has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2), (3). The appellant has also been afforded multiple VA medical examinations in connection with his claim. 38 C.F.R. § 3.159(c)(4). The Board finds that the sum of the examinations and resulting medical opinions provides an adequate basis upon which to adjudicate the claim, including specific reference to the applicable rating criteria. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Massey v. Brown, 7 Vet. App. 204 (1994) (holding that VA medical examination reports must provide sufficient reference to the pertinent schedular criteria). The appellant has not challenged the adequacy of the opinions obtained, nor has he alleged that his disability has increased in severity since he was last examined for VA compensation purposes. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary. Again, neither the appellant nor his representative has argued otherwise. Background The appellant's service treatment records show that in May 2002, he sought treatment for low back pain. He reported that he had been lifting boxes out of a van and felt a pop in his lower back followed by low back pain and stiffness. The assessment was mechanical low back pain. Subsequent service treatment records show continued complaints of low back pain. In September 2003, the appellant underwent laminectomy and fusion at L5-S1 secondary to chronic low back pain. In July 2005, following his separation from active service, the appellant submitted an original application for VA compensation benefits, seeking service connection for a low back disability. In connection with his claim, the RO obtained VA clinical records showing that in January 2005, the appellant sought treatment for low back pain. He reported a history of an L5-S1 laminectomy in service after which he had done well. Over the past few days, however, he had experienced increased back pain and mild tingling in the left thigh. Examination showed full range of motion of the spine. Neurovascular status was intact. There was no foot drop or focal weakness. The impression was exacerbation of chronic lumbar strain. In a March 2005 letter, the appellant's private physician indicated that the appellant was status post lumbar stabilization, that his back difficulties had resolved, and he was stable. The physician indicated that the appellant had no current work restrictions and could return to full activity without limitation. The appellant was afforded a VA medical examination in August 2005, at which he reported a history of chronic low back pain since an episode of heavy lifting. He indicated that he had undergone surgery in 2003. The appellant reported that although his symptoms initially decreased following the surgery, they had since recurred. His current symptoms included low back pain with flare-ups with bending, prolonged standing, and twisting. His pain occasionally radiated to his left leg. Alleviating factors included medication and rest. The appellant denied genitourinary complaints. The examiner noted that the appellant had a normal posture and gait and could walk without any assistive devices. The appellant denied interference with activities of daily living. He also denied any adverse impact on his employment as he worked in an administrative desk job. He also denied having had any incapacitating episodes in the past twelve months. Examination showed findings which included decreased range of motion with pain and asymptomatic surgical scars. Neurological examination showed that motor power was normal in the lower extremities and sensation was intact. The diagnosis was postsurgical changes with metallic plate and screws at L5-S1. Based on this evidence, in an October 2005 rating decision, the RO granted service connection for status post L5-S1 disc removal and fusion and assigned an initial 20 percent disability rating, effective December 7, 2004. In pertinent part, subsequent VA clinical records show that in September 2005, the appellant sought treatment in the emergency room for an episode of a sudden onset of back pain radiating to the left leg. He denied bowel or urinary changes. Examination showed no loss of strength or sensation. The assessment was low back strain with history of surgery. The appellant was given medication and exercises and advised that he could return to work in two days with limited activity, including no lifting over 10 pounds, no running, and no standing for more than 45 minutes. In December 2005, the appellant again sought emergency treatment for another episode of severe low back pain as well as left leg numbness. He indicated that his symptoms had been present since awakening. He also reported a slight difficulty controlling his urine for the past three days. The assessment was lumbar post laminectomy with possible radiculopathy. In light of his symptoms, the appellant was referred for a VA neurosurgical evaluation in December 2005 and January 2006. After reviewing recent MRI findings, the examiner recommended that the appellant try Gabapentin to alleviate some of his neuropathic pain. He also recommended a urology consultation. In that regard, the neurologist indicated that although the appellant's new onset of occasional urinary incontinence could be related to lumbar stenosis, his MRI suggested that his stenosis was not severe enough to cause such symptoms. He indicated that in the event no pathology was identified from a urologic standpoint, however, he could attribute the appellant's bladder dysfunction to his lumbar spine. At a genitourinary consultation in January 2006, the appellant reported difficulty holding his urine. He was noted to have a poor sphincter tone. The diagnosis was neurogenic bladder and he was referred for urodynamic studies, although it is unclear if these studies were performed. During a primary care clinic visit in January 2006, the appellant reported low back pain, numbness in the left lower extremity, and problems with urination. The assessment was post laminectomy syndrome and radiculopathy. Records obtained from the Social Security Administration show that in January 2006, the appellant applied for disability benefits, stating that his low back disability had prevented him from working since December 13, 2005. He explained that he had been working in an administrative position but after a recent aggravation of his back, he had had to stop working due to trouble walking and severe back pain. The appellant also reported that his low back disability occasionally now became so severe that it also prevented him from engaging in activities of daily living such as driving, shopping, and pushing a vacuum. SSA granted the appellant's application for disability benefits. Evidence used by SSA in reaching this determination includes medical and vocational opinions to the effect that the appellant's low back disability prevented him from carrying out past relevant work due to restrictions on his ability to stand, walk, lift, and carry. Additionally, these opinions indicated that the appellant's ability to perform other work was evaluated and it was determined that he was unable to perform even sedentary work on a sustained basis as a result of his low back disability. Evidence submitted by the appellant's former employer confirms that the appellant had last worked on December 12, 2005. The appellant's former employer indicated that the appellant had been employed doing office work with light duties, but that after December 13, 2005, he had been unable to come to work and complete his duties due to his back disability. Subsequent VA clinical records show that at an October 2006 VA neurosurgery consultation, the neurologist noted that the appellant had attempted a course of physical therapy since his last neurosurgical consultation in January 2006, but had been unable to complete it due to increasing back pain. On examination, the appellant exhibited an antalgic gait and walked with a cane. He appeared to have a partial foot drop. He also reported having daily incontinence since January 2006. The neurologist indicated that it was his opinion that the appellant had typical post laminectomy syndrome with some associated urological complaints. He indicated that this was likely related to the appellant's original disc herniation and surgery, although he recommended urodynamic studies. Additional VA clinical records show that in November 2008, the appellant reported that he continued to experience episodes of low back pain exacerbations at times, but overall his medication had helped to relieve his pain. In February 2010, the appellant reported that his symptoms had worsened, particularly when sitting. He reported increasing low back pain radiating to the left buttock with numbness and weakness in the left lower extremity. He also reported problems with urination which had been helped with oxybutynin. The diagnoses included lumbar post laminectomy syndrome with fusion at L5-S1, lumbar radiculopathy of the left lower extremity, and neurogenic bladder. In May 2010, the appellant reported that he had had to miss a few days of school in the past year due to back pain and requested a statement from a physician. In November 2010, the appellant underwent VA medical examination. He reported a history of a sudden onset of back pain in 2002 after he attempted to catch a box which had slipped from a vehicle. The appellant indicated that he underwent an L5-S1 fusion in September 2003 after which he was able to return to duty. The appellant indicated that in approximately September or October 2004, however, he began to experience a gradual return of radiating low back pain. He indicated that he was compelled to stop working in 2005 due to his symptoms. In reviewing the record, the examiner noted that the appellant had documented visits to the emergency room on several occasions for injections for pain in his back and had also been under the care of VA's neurosurgery clinic since January 2006. She further noted that the record reflected that since January 2006, the appellant had complained of severe low back pain and incontinence. Although his bladder disability, diagnosed as neurogenic bladder, was currently somewhat under control with medication, he continued to experience episodes of incontinence once or twice monthly. The examiner indicated that it was her opinion that the appellant's neurogenic bladder disability was secondary to his service-connected low back disability. The examiner also indicated that although the appellant had obtained some relief from his low back pain as a result of several epidural injections, they had not been totally effective and he continued to require pain medication and medical management. The examiner indicated that the appellant reported that his low back disability required a day of bed rest at least once a month and that he was now on Social Security disability. He could not stand more than a half hour at a time before experiencing pain and had some numbness and a slight foot drop in the left leg. He used a cane to ambulate. Range of motion testing showed flexion to 50 degrees with pain, extension to 5 degrees with pain, right rotation to 25 degrees, left rotation to 25 degrees with pain, right and left side bending to 15 degrees with pain. After three repetitions, the appellant exhibited flexion to 62 degrees with pain, extension to 10 degrees with pain, right rotation to 25 degrees with pain, left rotation to 25 degrees with pain, and right and left side bending to 15 degrees with pain. The appellant also exhibited functional loss, including weakness, fatigability, and incoordination. During flare-ups, he could not walk and required bed rest. The examiner indicated that over the past twelve months, the appellant had required at least one week but less than two weeks of bed rest. She noted that there was pain on palpation of the appellant's lumbar area but no guarding or atrophy. There was no ankylosis, scoliosis, reverse lordosis or abnormal kyphosis, nor was there any fixed deformity. After examining the appellant and reviewing the claims folder, the examiner diagnosed the appellant as having L5-S1 instrumental fusion; post laminectomy syndrome with associated urological incontinence with mild residuals; lumbar strain with moderate residuals; lumbar radiculopathy of the left lower extremity; and neurogenic bladder as associated with the post laminectomy syndrome. The examiner indicated that it was her opinion that the appellant's service-connected low back disability rendered him unable to maintain or sustain substantially gainful employment, including in a sedentary position. In a May 2012 addendum, the VA examiner clarified that the record contained no radiographic evidence that the appellant's service-connected low back disability was manifested by unfavorable ankylosis, nor was there any symptomatology present which was associated with unfavorable ankylosis, such as dyspnea. The examiner noted, however, that the appellant had reported that during flare-ups of back pain, he was confined to bed and unable to move. She indicated that it was her opinion that these symptoms were the functional equivalent of favorable ankylosis of the thoracolumbar spine. With respect to the appellant's footdrop, she explained that it evidenced mild damage of the left sciatic nerve. Finally, she indicated that she would characterize the appellant's lumbar radiculopathy as severe. Applicable Law Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate diagnostic codes identify the various disabilities. 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 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2012). In considering the severity of a disability, it is essential to trace the medical history of the claimant. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2012). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (2012). When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see DeLuca v. Brown, 8 Vet. App. 202 (1995). The lumbar spine is considered a group of minor joints. 38 C.F.R. § 4.45(f). The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012) (pertaining to degenerative arthritis of the spine). That formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Under Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under Note (2): 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. Under 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2012). In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10 (2012). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a) (2012). Disabilities resulting from a common etiology or a single accident, or affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a) (2012). 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. Thus, in any case where the Veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of an initial schedular rating in excess of 40 percent for status post L5-S1 disc removal and fusion for any period of the claim. The Board further finds that effective December 13, 2005, the appellant meets the criteria for a total rating based on individual unemployability due to service-connected disability on an extraschedular basis. As set forth above, during the entire pendency of the claim, the appellant has been in receipt of a 40 percent disability rating for his service-connected low back disability. Absent a showing of symptomatology which more nearly approximates unfavorable ankylosis of the entire thoracolumbar spine, which has been neither shown nor alleged, the appellant has been in receipt of the maximum schedular rating available under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). In that regard, repeated examinations have shown that since the award of service-connection, range of motion of the appellant's spine has not been so severe as to entitle him to a schedular rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. Nonetheless, given the evidence that his disability is productive of severe low back pain, functional loss, and flare-ups, the RO has assigned an initial 40 percent schedular rating, finding that the symptoms associated with the appellant's service-connected low back disability are the functional equivalent of favorable ankylosis, warranting a 40 percent schedular rating. See also 38 C.F.R. §§ 4.40, 4.45, and 4.59. The evidence does not show, however, nor has the appellant specifically contended, that he exhibits symptoms which would entitle him to a schedular rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine, including unfavorable ankylosis of the thoracolumbar spine. Indeed, in May 2012, a VA examiner specifically indicated that based on repeated imaging studies, the appellant's service-connected low back disability was not manifested by unfavorable ankylosis, nor did he exhibit any symptoms indicative of unfavorable ankylosis, such as dyspnea. See Id. at Note (5). Given the evidence of record showing notations of lumbar disc disease, the Board has also considered whether the appellant is entitled to an initial rating in excess of 40 percent under the rating criteria for evaluating intervertebral disc syndrome. As set forth above, however, the evidence does not show, nor does the appellant contend, that his service-connected low back disability was productive of incapacitating episodes totalling at least 4 weeks in a 12-month period for any period of the claim. Indeed, at the most recent VA medical examination, the examiner indicated that the appellant's service-connected low back disability produced incapaciting episodes requiring bed rest totalling less than two weeks in a one year period. Thus, the Board finds that a rating in excess of 40 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). In view of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of an initial schedular rating in excess of 40 percent for status post L5-S1 disc removal and fusion for any period of the claim. Here, the Board observes that in addition to the appellant's service-connected low back disability, the RO has also awarded service connection for separate associated neurological disabilities. The RO has assigned an 80 percent rating for left sided lower extremity neuropathy from February 18, 2010, and a 10 percent rating for a neurogenic bladder disability, effective November 18, 2010. As discussed above, those matters are not currently in appellate status. The Board also notes that the record on appeal shows that the appellant's service-connected status post L5-S1 disc removal and fusion includes a post-operative scar. The evidence, however, indicates that such scarring is asymptomatic and does not otherwise meet the criteria for a separate compensable rating. The appellant does not contend otherwise. 38 C.F.R. § 4.118, Diagnostic Codes 7800- 7805. Thus, there is no basis for a separate compensable rating for scarring. Although the appellant's service-connected status post L5-S1 disc removal and fusion does not meet the schedular criteria for an initial rating in excess of 40 percent, the Board has also considered his entitlement to total disability rating based on individual unemployability, as it is a component of the claim for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Applying the criteria set forth in section 4.16 to the facts in this case, the Board concludes that effective December 13, 2005, the appellant's service-connected status post L5-S1 disc removal and fusion rendered him unable to secure and follow a substantially gainful occupation. The record reflects that effective February 18, 2010, the appellant met the criteria for a total rating based on individual unemployability under 4.16a. The Board finds that prior to that time, the record is sufficient to establish that as of December 13, 2005, his service-connected low back disability, in and of itself, rendered him unable to secure and follow a substantially gainful occupation, warranting an extraschedular rating under 4.16(b). As set forth above, the appellant reports that he has not worked since December 13, 2005, when his service-connected back disability became so severe that he was unable to continue in his job. Noting the consistency of his statements over the course of this appeal, the Board finds them to be highly credible. This conclusion is strengthened by the fact that the appellant's former employer has provided evidence confirming that as of December 13, 2005, the appellant was unable to fulfill the duties of his position as a result of his low back disability. Moreover, in November 2010 and May 2012, a VA medical examiner agreed that the appellant's low back disability rendered him unable to maintain or sustain substantially gainful employment, including in a sedentary position, at least since January 2006. Records obtained from the Social Security Administration also include medical and vocational opinions to the effect that since December 13, 2005, the appellant's low back disability has prevented him from carrying out past relevant work due to restrictions on his ability to stand, walk, lift, and carry, and has further prevented him from performing even sedentary work on a sustained basis. Finally, the Board notes that the record on appeal contains no other medical or vocational opinions which contradict these conclusions. As noted above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence set forth above, such a conclusion cannot be made in this case. Rather, the Board finds that effective December 13, 2005, the appellant is entitled to a total rating based on individual unemployability due to service-connected disability on an extraschedular basis. Again, although the appellant does not meet the minimum schedular requirements for a total rating based on individual unemployability from December 13, 2005, the Board has the authority to review the February 2013 adverse determination of the Director of Compensation and Pension Services. See Anderson v. Shinseki, 22 Vet. App. 423, 429 (2009) (holding the Board did not exceed its authority when it reviewed a determination by the Director of C&P denying an extraschedular rating under 38 C.F.R. § 3.321(b)). For the reasons discussed above, the record reflects that although the appellant did not meet the disability percentage requirements set forth in 38 C.F.R. § 4.16(a), the record is sufficient to establish that his service-connected low back disability rendered him unemployable as of December 13, 2005. Thus, a total rating based on individual unemployability due to service-connected disability is warranted from that date on an extraschedular basis. See 38 C.F.R. § 4.16(b) (2012). Prior to that date, the appellant was gainfully employed on a full-time basis and the evidence does not show, nor has the appellant contended, that he was unable to secure and follow a substantially gainful occupation by reason of his service-connected disability. The Board further finds that prior to December 13, 2005, there is no evidence of additional symptoms referable to the appellant's service-connected status post L5-S1 disc removal and fusion which have not already been compensated by the schedular rating assigned. Moreover, during that time, the appellant's service-connected low back disability did not necessitate frequent periods of hospitalization and he has not contended otherwise. Additionally, prior to December 13, 2005, his disability was not shown to cause marked interference with employment beyond that contemplated by the assigned schedular 40 percent rating. Indeed, the appellant was fully employed prior to that time and at an August 2005 VA medical examination, the appellant reported that his service-connected low back disability had no adverse impact on his employment as he worked in an administrative desk job. Under these circumstances, a total rating based on individual unemployability due to service-connected disability or referral for extraschedular rating prior to December 13, 2005, is not warranted. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to an initial schedular rating in excess of 40 percent for status post L5-S1 disc removal and fusion is denied. Entitlement to a total rating based on individual unemployability due to service-connected disability is granted effective December 13, 2005, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs