Citation Nr: 1318835 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 10-27 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating (evaluation) in excess of 40 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Don W. Griffis, Attorney-at-Law ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from August 2005 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and March 2010 rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. In the December 2008 rating determination, the RO denied an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine. Thereafter, the Veteran filed a notice of disagreement. Subsequently, the RO, in a May 2010 rating determination, increased the Veteran's disability evaluation from 20 to 40 percent for his degenerative disc disease, effective the date of the Veteran's claim for an increased evaluation. In March 2010, the RO denied entitlement to a TDIU. In January 2012, the Board remanded these issues for further development, to include readjudicating the claims following review of additional evidence received subsequent to the issuance of the last statement of the case without the appropriate waiver from the Veteran. The requested development was performed and the directives of the Board remand were complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of this appeal, the RO, in a January 2010 rating determination, granted service connection for sciatica of the right and left lower extremities and assigned 20 percent disability evaluations for each. As the Veteran has not expressed disagreement with this rating determination, the Board will not address these issues as part of the claim for an increased evaluation for degenerative disc disease of the lumbar spine. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's lumbosacral spine disability has been manifested by forward flexion to no less than 5 degrees; with no ankylosis; and no incapacitating episodes. 2. The Veteran's service-connected disabilities, when evaluated in association with educational attainment and occupational experience, preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation in excess of 40 percent for degenerative disc disease of the lumbosacral spine have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235-5243 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify 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); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that 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). As it relates to the claim for a TDIU, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, which is the full grant of the benefit sought on appeal as it relates to the TDIU claim, further assistance is not required to substantiate the claim. As to the claim for an increased disability evaluation for degenerative disc disease, the Veteran's status has been substantiated. The Board observes that, in an October 2008 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The October 2008 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service and VA, have been obtained and associated with the claims folder. No other relevant records have been identified. The Veteran was afforded VA examinations in January 2009 and January 2010, with an April 2010 addendum report, which provided sufficient information to properly rate the Veteran's claim for his degenerative disc disease. The Board notes that the Veteran was also scheduled for VA examinations in July and October 2012, with regard to his claim for an increased evaluation for the degenerative disc disease of the lumbar spine. The Veteran failed to report for the scheduled examinations, and did not provide any reason for his failure to appear. Information obtained from these examinations may have been beneficial to properly assess the Veteran's claim. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's lack of sufficient cooperation is a factor in VA's decision to adjudicate the current claim without scheduling an additional VA examination. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his attorney. He was also given the opportunity to appear for a hearing but failed to report for the scheduled hearing on two separate occasions. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Increased Evaluation for Degenerative Disc Disease of the Lumbar Spine Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. 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). Where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent disability rating for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, 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. 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 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) provides that, 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under 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 method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Board has considered all the evidence of record, lay and medical, as it bears on the issue of rating. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an increased evaluation in excess of 40 percent for service-connected degenerative disc disease of the lumbosacral spine for the entire increased rating period on appeal. For the entire rating period, even with considerations of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected low back disability did not manifest unfavorable ankylosis of the thoracolumbar or entire spine, as required for an evaluation in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine, or incapacitating episodes of intervertebral disc syndrome of at least 6 weeks in duration, for an evaluation in excess of 40 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Treatment records obtained in conjunction with the Veteran's claim reveal that at the time of a June 2009 outpatient visit, the Veteran reported having low back pain. The lower back exhibited tenderness on palpation of the left and right paraspinal regions. There was no costovertebral angle tenderness. The lumbosacral spine exhibited an abnormal appearance with loss of normal lordosis. There were also spasms of the paraspinal muscles. Active extension of the lumbar spine was to 5 degrees. Active flexion of the lumbar spine was to 5 degrees. Rotation to the left was to 10 degrees while rotation to the right was to 5 degrees. Lateral flexion on the left was to 10 degrees while lateral flexion on the right was to 5 degrees. Lumbar spine pain was elicited in all planes of motion as evidenced by the significantly limited range of motion. A November 2009 MRI of the lumbar spine revealed small subacute chronic left paracentral disc herniation with surrounding osteophyte formation at L5-S1 without significant encroachment on the thecal sac or lateral foramen; broad based disc bulge with a central annular tear at L4-5 resulting in mild central canal stenosis; and mild generalized lumbar spondylosis. At the time of a January 2010 VA general medical examination, the Veteran reported that his back pain had worsened and that he could not stand for more than 10 minutes or walk on rough terrain because it pulled on his lower back and caused his feet and legs to sting from sciatica. He also had difficulty putting on pullover shorts because of the lower back and difficulty grooming because of pain. He further reported having difficulty sleeping as it was hard to get into a comfortable position. The Veteran stated that he could not lift more than 20 pounds and could not push or pull things because of his back. The Veteran was taking Ultracet 120, 4 times per day, and Naprosyn every day. The examiner in January 2010 noted that the Veteran had intervertebral disc syndrome. As to incapacitating episodes, it was noted that the Veteran had had spasms in his lower back and knots in the back of his calf in the left leg. This had lasted for three days and the Veteran saw a doctor and was given a shot and some other oral medication;. The examiner noted that the Veteran had flare-ups, which would arise from just getting out of bed. The flare-ups also occurred with standing too long, sitting too long, squatting, climbing stairs, climbing ladders, and walking too long. Alleviating factors were medication, heat, hot showers, cold compresses, deep heating rub, rest, and leg elevation. The flare-ups happened every 5 to 6 months and would last one to two days, being severe in nature. Physical examination in January 2010 revealed no evidence of spinal ankylosis or fracture of one or more of the vertebral body. While ranges of motion for the lumbar spine were reported, an addendum to the report was made in April 2010, which will be discussed below. The examiner in January 2010 was noted to have been previously employed as a land surveyor. He had been unemployed for less than a year. The Veteran reported that he had been laid off because his back condition was interfering with his work. The examiner rendered a diagnosis of degenerative disc disease of the lumbar spine. She indicated that this condition affected usual daily activities as the Veteran could not do any outside chores. He was also noted to be unable to run a vacuum cleaner or lift more than 20 pounds. The Veteran was also not able to lift his child. The Veteran indicated that he was not able to take off his own socks and shoes and had difficulty putting on his pants because of his back problems. In an April 2010 addendum report, relating to the reported ranges of motion at the time of the January 2010 examination, the examiner indicated that the Veteran had flexion from 0 to 30 degrees and would stop because of pain and fatigue after three repetitions, lack of endurance was present. Extension was from 0 to 5 degrees as were right and left lateral flexion and right and left lateral rotation. The Veteran stopped at the reported degrees as a result of pain. He did not move any more after that. The examiner indicated that it was her belief that the Veteran could have done better on range of motion testing if he could have relaxed. She noted that the Veteran was very rigid and placed force against her trying to move his back. She noted that he was strong enough to fight her to not try and get in position. At the time of a February 2010 outpatient visit, the Veteran reported having pain in the low back, which was much greater than the leg pain. The Veteran indicated that the pain became worse with sitting, standing, walking, or bending. He could not get into any position that was comfortable. The Veteran reported having received 3 epidural injections into his back in 2009, which initially helped but lasted only three days. Musculoskeletal examination performed at that time revealed limited range of motion on flexion, extension, and lateral bending, secondary to low back pain, mostly below the L4 level. X-rays of the lumbar spine revealed collapse of the disc at the L5-S1 level. There was a posterior osteophyte and narrowing of the foramen at this level. Diagnoses of discogenic pain possible; herniated disc L4-5 and L5-S1, with some minimal impingement on the left S1 nerve root; possible instability at the L4-5 level, although not full numerical criteria; low back pain; and leg sciatica, were rendered. At the time of an April 2010 visit, results of a discogram were noted to have been positive for concordant pain at L4-5 and L5-S1 with negative control at L3-4 and Grade 4 tears at L4-5 and L5-S1. In a June 2010 report, D. C., M.D., indicated that he had received a note from the Veteran's attorney with concern that there might be a higher evaluation if there were episodes of intervertebral disc syndrome which had to have a total duration of at least six weeks during the past 12 months. Dr. C indicated that the nomenclature of an intervertebral disc syndrome was what characterized the Veteran's discogenic pain, meaning that his disc was degenerated and torn, causing likely micro-instability and generating pain from the intervening pain fibers across the disc. He stated that the Veteran was certainly suffering from this and under the circumstances, this was the criteria for a 60 percent disability evaluation. He thought the Veteran fell within this category, definitively. Following the January 2012 Board remand, the Veteran was scheduled for VA examinations to determine the severity of his back condition in July and October 2012. The Veteran failed to appear for the scheduled examinations and did not provide good cause for his failure to appear. While the examinations were not scheduled in conjunction with the Board remand, information obtained from these examinations may have been beneficial to the Veteran's claim. Based upon these findings, the Board finds the assignment of a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is not warranted for any period, as the requirements of unfavorable ankylosis of the thoracolumbar or entire spine, or incapacitating episodes of intervertebral disc syndrome of at least 6 weeks in duration, have not been met or more nearly approximated at any time during the rating period on appeal. 38 C.F.R. § 4.71a, DCs 5235-5243. Flexion of the thoracolumbar spine has been shown to be no less than 5 degrees, even with consideration of the factors listed in DeLuca. There was no ankylosis of the spine, either favorable or unfavorable, at any time. The Board has considered the additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 40 percent is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. Here, the Board notes the Veteran's reported impairment of function in occupational settings and in daily life, such as limited walking; being unable to push or pull, bend or squat; and being unable to stand or sit for any prolonged periods of time, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). In this case, the 2010 VA examiner found objective evidence of pain on active and repetitive motion, but with no additional limitations after three repetitions of range-of-motion. However, even if the pain and additional limitation are taken into consideration, the range-of-motion measurements still do not meet or more nearly approximate the criteria for the next higher rating category. Indeed, the lowest flexion measurement was to 5 degrees. The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain. Thus, the overall evidence shows that pain or other factors have not resulted in additional functional limitation such as to enable a finding that the disability picture more nearly approximates the next-higher, 50 percent, evaluation under the General Rating Formula for Diseases and Injuries of the Spine. As discussed above, the criteria for a 40 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine is forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Thus, based on the above findings, the preponderance of the evidence demonstrates the criteria for an evaluation higher than 40 percent are not met, as range-of-motion findings fall well within the 40 percent rating category, even taking additional loss of motion due to DeLuca factors into account; therefore, the 40 percent rating, but no more, is appropriate. Next, the Board has considered whether a rating in excess of 40 percent is warranted under DC 5243 based on incapacitating episodes. As previously mentioned, DC 5243 deals with IVDS, which can include degenerative disc disease. However, in order to meet the criteria for a compensable rating under this diagnostic code, a veteran must show that a physician ordered bed rest to treat the disorder. In this case, despite the Veteran's report of incapacitating episodes and the notation that such episodes would occur every five to six months and last one to two days, there are no physician's orders or other evidence in the claims file that the Veteran's doctors prescribed bed rest; therefore, he does not meet the criteria for a higher rating under DC 5243 at any time. As it relates to the June 2010 letter from Dr. C., while Dr. C. has expressed his belief that a 60 percent disability evaluation is warranted, he makes no reference to any prescribed bed rest. The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating, including DC 5237, which addresses lumbosacral strain, discussed above. DC 5242 is also potentially applicable, as it addresses degenerative arthritis of the spine. Disabilities evaluated under this code are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, as discussed above. However, DC 5242 is related to DC 5003, which also addresses degenerative arthritis. In this case, the maximum evaluation possible under DC 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Thus, it does not allow for a higher evaluation. There are no other applicable codes available for consideration. For these reasons, the Board finds that the weight of the evidence is against a finding of an evaluation in excess of 40 percent for degenerative disc disease of the lumbosacral spine for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the degenerative disc disease of the lumbar spine. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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 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) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). 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 the Compensation and Pension 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. Turning to the first step of the extraschedular analysis, the Veteran's back disability has manifested in arthritis, painful movement, and limited range of motion. The schedular criteria for rating the lumbosacral spine disability (General Rating Formula for Diseases and Injuries of the Spine) specifically provide for ratings based on the presence of painful arthritis; limitations of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. In this case, comparing the Veteran's disability level and symptomatology of the lumbar spine to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. In the absence of exceptional factors associated with the degenerative disc disease of the lumbosacral spine, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Entitlement to TDIU Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). In calculating whether a veteran meets that 60/70 percent schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(a). In any event, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b); see 38 C.F.R. §§ 3.340, 3.341, 4.15 (2012). In this regard, 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 that 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 a veteran's actual industrial impairment. In a pertinent precedent decision, VA General Counsel interpreted 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 for determining unemployability include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. The Court has also held that a veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment. Thus, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Furthermore, marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Service connection is currently in effect for degenerative disc disease of the lumbar spine, rated as 40 percent disabling; sciatica of the left lower extremity, rated as 20 percent disabling; sciatica of the right lower extremity, rated as 20 percent disabling; and residuals of a right shoulder injury, rated as 20 percent disabling. The combined disability evaluation is 70 percent. Based upon the above assigned disability evaluations, the Veteran has met the criteria for consideration under 38 C.F.R. § 4.16(a). The Veteran contends that he cannot obtaining or retain substantially gainful employment. He maintains that his service-connected disabilities are sufficient to prevent him from obtaining or retaining substantially gainful employment. After reviewing all the evidence, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's service-connected disabilities prevent him from obtaining or retaining substantially gainful employment. In a June 2009 outpatient treatment record, it was noted that the Veteran's intervertebral disc degeneration caused him to be unable to perform the duties required by his MOS. At the time of a December 2009 VA neurological examination, the Veteran was noted to have been unemployed since May 2008. His current unemployment had been for less than one year at that time. The Veteran indicated that he was unemployed due to a worsening of his low back pain with sciatic symptoms. The reason given for the unemployment at that time was a worsening of low back pain with sciatic symptoms. At the time of the January 2010 VA examination, he was again noted to not be working and to have been laid off for less than one year. The Veteran again reported that he was laid off because his back condition was interfering with his work. The examiner indicated that Veteran's usual occupation was a land surveyor. In addition to noting that the Veteran could not do any outside chores, use a vacuum, lift more than 20 lbs., or tie his shoes or put on his socks because of his service-connected low back and lower extremity sciatica problems, the examiner also stated that, due to the service-connected right shoulder problem, the Veteran also could not push or pull anything. The examiner also noted that the Veteran could neither sit or stand long as a result of his disabilities. Moreover, as to the question of whether the Veteran was unemployable, the examiner indicated that this was one time that she could not state this freely. She noted that the Veteran was not bed bound and could ambulate and drive a car when he had to. She further stated that with the right modifications the Veteran could work, but he would have to have modifications. In the April 2010 private report, it was noted that the Veteran was not able to work at his current position. He was noted to have worked as a land surveyor, which required using a hand-held sledge hammer to drive stakes and carrying heavy stakes with him. He also had to walk quite a bit of distance, which was essentially impossible in his current state of condition. It was observed that he disagreed with VA about his ability to work. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities would render him essentially unemployable, regardless of his occupation. As noted by the January 2010 VA examiner, the Veteran cannot sit or stand for any period of time. Moreover, he is inhibited in his ability to push, pull, or lift objects. The examiner further indicated that, while it was difficult to state whether the Veteran was unemployable, she noted that he certainly could not work without modifications. Furthermore, the Veteran's occupational history includes performing manual labor. The consensus among physicians and examiners, both VA and private, is that the Veteran cannot work in his previous position as a land surveyor. Given the Veteran's physical limitations, which include the inability to either sit or stand for longer periods which has been attributed directly to his service-connected disabilities, his inability to continue with his prior employment which is also a result of his service-connected disabilities, and his occupational history of predominantly manual labor, the Board finds that the Veteran's service-connected disabilities are of sufficient severity to preclude him from obtaining or retaining gainful employment. For these reasons and bases, and resolving reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted. 38 C.F.R. §§ 3.340, 3.341, 4.15, and 4.16. ORDER A disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. A TDIU is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs