Citation Nr: 1319384 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 07-29 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent for degenerative changes of the lumbar spine. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from October 1992 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). In August 2010, the Veteran testified before the undersigned during a personal hearing. A transcript of that hearing is associated with the claims file. This case was remanded by the Board in October 2010 for additional development. FINDINGS OF FACT 1. The Veteran's low back disability is manifested by no more than pain with motion no more limited than to 40 degrees of forward flexion, 20 degrees of extension, 20 degrees of left lateral flexion, 20 degrees of right lateral flexion, 20 degrees of left lateral rotation, and 20 degrees of right lateral rotation. 2. The Veteran's service connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for degenerative changes of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5243 (2012). 2. The criteria for TIDU have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA provided adequate notice in letters sent to the Veteran in May 2005, March 2006, April 2007, and February 2009. To the extent that the notice was subsequent to the initial unfavorable adjudication in April 2006, the Veteran has since had a meaningful opportunity to participate in the processing of his claims and the RO has readjudicated the claims as recently as in a December 2011 supplemental statement of the case, thus curing any timing defect. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All relevant, identified, and available evidence, including VA treatment records and records from the Social Security Administration (SSA) have been obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims, most recently in November 2010. Review of that examination indicates that it is adequate. The examiner considered the history of the Veteran's disability, included detailed descriptions of the disability, and provided a sufficient explanation as to the opinions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007 In a January 2012 writing, the Veteran alleged that the examiner did not properly examine him, to include not measuring his range of motion. In the absence of clear evidence to the contrary, public officers are presumed to have properly discharged their official duties. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (applying the presumption of regularity to the competent actions of an examiner). Review of the November 2010 examination report reveals measurements in degrees for all relevant motions and that the examiner took into consideration the Veteran's reports of pain and observed the Veteran during the examination. The Veteran's statements do not rise to the level of clear evidence to the contrary. Hence the Board concludes that the Veteran's statements are insufficient to rebut the presumption that the examiner properly conducted the examination. In October 2010, the Board remanded these issues for additional development. There has been compliance with the directives of that Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Appeals Management Center (AMC) sent a letter to the Veteran in October 2012 requesting that he submit any evidence or information relevant to the issues on appeal. Another examination was conducted in November 2010, and additional treatment records were obtained and associated with the claims file. The AMC readjudicated the issues in a December 2011 supplemental statement of the case. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Ratings - Lumbar Spine Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). II.A. Ratings - Lumbar Spine - Factual Background VA treatment records from February 2004 through November 2010 include numerous reports of back pain. Straight leg raising was consistently negative. The Veteran was consistently assessed with back pain. Imaging studies, to include x-rays and MRI, consistently showed minimal degenerative disease of the lumbar spine. He also consistently reported numbness of the back. He denied bowel or bladder incontinence. He was treated with steroid injections during this period. In an April 2006 VA general medical examination report, the Veteran reported numbness and chronic low back pain. He reported experiencing flare-ups daily with standing longer than one hour, though he did not identify any additional treatment or limitation during a flare-up. The Veteran reported being unable to finish chores due to back pain. On physical examination, the Veteran's posture and gait were normal. He had multiple trigger points throughout his spine with no muscle spasm noted. He had forward flexion to 50 degrees, with exaggerated pain and grimacing; left and right lateral flexion to 40 degrees, with complaints of pain; and left and right lateral rotation to 35 degrees, with complaints of pain. There was no additional limitation with repetitive motion, and neurological examination was normal. MRI testing of the lumbar spine showed degenerative joint changes with no spinal stenosis, while an x-ray examination of the thoracic spine was normal. The relevant diagnosis was mild chronic lumbar strain without additional limitation on flare-up or repetitive motion. A May 2007 VA spine examination report documents the Veteran's report of complained of chronic back pain and episodes of numbness. He denied experiencing any loss of bowel or bladder control, but reported difficulty with lifting objects and some activities of daily living. On physical examination, the Veteran had low back range of motion to 50 degrees of flexion, 20 degrees of extension, 20 degrees of right and left lateral flexion, and 20 degrees of right and left lateral rotation. He reported pain on all range of motion testing, but no additional limitation of motion was noted. He did not have any spasm, though there was tenderness to palpation of the lumbar region. On neurological testing, no abnormalities were noted, other than complaints of pain with straight leg raise testing. The report stated that August 2006 x-rays of the sacroiliac joints were reported as normal. The impression was degenerative changes of the lumbar spine. The examiner stated that additional limitations of function during a flare-up could not be determined without resorting to speculation. In a May 2007 private medical report, the Veteran complained of low back pain aggravated by excessive walking and sitting. He reported that he could not assist with activities of daily living when his back pain was bad, and he required some assistance with some activities on occasion as well. On physical examination, the Veteran was leaning against the wall and hobbling the entire time. The examiner stated that the Veteran was acting as if he could hardly move and had an excessive amount of grimacing, moaning, groaning, and heavy breathing, but did not appear to be in such a level of discomfort when his history was being taken. The Veteran's effort was characterized as moderate. He had lumbar spine range of motion to 15 degrees of flexion, 25 degrees of extension, and 25 degrees of lateral flexion. Straight leg raise testing was positive, bilaterally, and there were paravertebral muscle spasms and tenderness over the lumbar area. The diagnosis was lower back pain. In a November 2010 VA neurological disorders examination report, the Veteran reported that he had not had any prescribed bed rest in the previous 12 months due to his back disorder. He reported experiencing back pain and numbness constantly across his lower back, with radiating numbness into his legs. The Veteran denied experiencing stiffness, weakness, lack of endurance, fatigability, associated bladder dysfunction, and associated bowel dysfunction. He also denied experiencing flare-ups and incapacitating episodes. On physical examination, the Veteran's posture was within normal limits. His gait was antalgic, but it was due to unrelated right leg pain, and the Veteran was ambulatory without any assistive devices. The Veteran's reflexes were normal, he had no atrophy or loss of tone, and his strength was full. His coordination was unstable, but it was due to unrelated right leg pain. After sensory testing, the examiner stated that, despite subjective complaints, the Veteran's objective responses to clinical testing were not consistent with neuropathy or radiculopathy. The Veteran had thoracolumbar spine range of motion after 3 repetitions to 40 degrees of flexion, 20 degrees of extension, 30 degrees of right and left lateral flexion, and 30 degrees of right and left lateral rotation. His range of motion was limited by pain. The Veteran did not have any additional loss of function with repetitive use. Additional loss of function due to flare-ups could not be determined without resorting to mere speculation. On x-ray examination of the Veteran's lumbosacral spine, no abnormalities were noted. The examiner also provided findings that the Veteran had no deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, or pertinent abnormal weight bearing, other than what was otherwise noted in the examination report; as listed above. The diagnosis was degenerative joint disease of the lumbosacral spine with no objective evidence of sensory or motor radiculopathy from the disorder. The examiner characterized the Veteran's functional limitations as moderate. There are numerous statements from the Veteran, his spouse, and his mother stating that the Veteran had pain and numbness of his back and that he had been let go from jobs due to his back pain. Examples of such statements are found in writings from August 2010and April 2005 as well as the Veteran's testimony in August 2010. II.B Ratings - Lumbar Spine - Law and Analysis Of note, at the time of award of service connection in February 1998, the rating was assigned under Diagnostic Code 5293, effective November 22, 1994. Subsequently, an April 2006 rating decision recharacterized the disability as degenerative changes of the lumbar spine and assigned a 20 percent rating, effective February 7, 2005. under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242, effective February 7, 2005. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2012). The hyphenated diagnostic code in this case indicates that traumatic arthritis, under Diagnostic Code 5010, was the service-connected disorder, and degenerative arthritis of the spine, under Diagnostic Code 5242, was a residual condition. The Veteran's service-connected back disability is rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 provides that degenerative arthritis of the spine is to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The General Rating Formula states that a 10 percent disability rating is warranted 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 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). The most probative evidence of record shows that orthopedic manifestations of the Veteran's low back disability are pain, and limitation of motion to 40 degrees of forward flexion, 20 degrees of extension, 20 degrees of left lateral flexion, 20 degrees of right lateral flexion, 20 degrees of left lateral rotation, and 20 degrees of right lateral rotation. The only objective findings of limitations of motion more restrictive than these measurements are in the May 2007 private medical report, which found that the Veteran had a range of motion to 15 degrees of flexion. However, the physician who examined him emphasized that the Veteran appeared to be exaggerating his symptoms and only made a moderate effort. In addition, the May 2007 VA spine examination report was conducted approximately two weeks prior to the May 2007 private medical report, and the Veteran at that time was noted to have had a range of motion to 50 degrees of flexion. Combined with the other range of motion reports of record, all of which indicate ranges of motion on flexion significantly greater than those reported in the May 2007 private medical report, the Board finds that the May 2007 private medical report results are not indicative of the true severity of the Veteran's low back symptomatology. As such, the Board finds that the preponderance of medical evidence shows that his limitation of motion of the thoracolumbar spine does not approximate 30 degrees and that there is no ankylosis of his thoracolumbar spine. The Veteran has reported low back pain on use. However, the results of testing show that this does not result in additional functional limitation analogous to forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Specifically, the April 2006 VA general medical examination report, May 2007 VA spine examination report, and November 2010 VA neurological disorders examination report all stated that the Veteran's back was not limited in range of motion beyond the degrees listed therein, including as due to pain and repetitive motion. Joint pain alone, including pain throughout the entire range of motion, but without evidence of decreased functional ability, does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Accordingly, the most probative evidence of record shows that the Veteran's pain does not result in additional limitation of motion beyond that contemplated by the currently assigned rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). As such, orthopedic manifestations of his low back disability do not approximate the criteria for a rating higher than the 20 percent already assigned. It is noted that the examination reports include statements that additional limitations of function during a flare-up could not be determined without resorting to speculation. The Board finds that no further explanation is needed in this regard. Although the Veteran characterizes his loss of function as considerably greater, including near paralysis, none of the examination reports or treatment records reflect observation of such disability. Given the numerous records associated with the claims file and the comments found in reports, such as the May 2007 private provider report, the Board concludes that the examiners' statements with regard to speculation are sufficiently supported by the record. In short, the Board would expect to have seen some evidence of the flare-up conditions in the reports and the comments just referred to tend to show that the Veteran's reports, as well as other laypersons reports, are not credible as to the extent of disability. With regard to the neurologic manifestations of the Veteran's back disability, the evidence of shows that the Veteran has repeatedly complained of various neurological symptoms of his service-connected back disability. However, the numerous medical reports include findings that the Veteran's neurological symptoms were unrelated to his service-connected back disability, to include not due to radiculopathy or neuropathy, but rather were attributed to other conditions, including fibromyalgia. Furthermore, there is no evidence of record that the Veteran has ever experienced bowel or bladder impairment secondary to his service-connected back disability. As such, a separate evaluation for bowel or bladder impairment is not warranted. See 38 C.F.R. § 4.71a, General Rating Formula, at Note (1). As there is evidence that the Veteran has degenerative disc disease of the lumbar spine, the Board has considered evaluating the Veteran's low back disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS). Under the Formula for Rating IVDS, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS. For the purposes of evaluations under Diagnostic Code 5243, 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. 38 C.F.R. § 4.71a, Formula for Rating IVDS, at Note (1). The evidence of record does not show that the Veteran has been prescribed bed rest by a physician. While the Veteran has reported needing to lie down due to back pain on multiple occasions, there is no evidence that he was ever prescribed bed rest by a physician. In the absence of any such a prescription, none of the episodes reported by the Veteran qualify as an incapacitating episode for VA purposes. Id. Accordingly, the most probative evidence of record tends to show that the Veteran has ever been prescribed bed rest by a physician for a period of at least two weeks in any one year period. As such, a rating in excess of 20 percent is not warranted under the Formula for Rating IVDS. See 38 C.F.R. § 4.71a, Formula for Rating IVDS. The Board has considered the reports of the Veteran and laypersons as to the limitations and symptoms suffered due to his service-connected low back disability. Weighing those statements along with the treatment records and examination reports, the Board finds the examination reports to be the most probative evidence of record. Those results include comprehensive findings and the results of testing. Additionally, the treatment records tend to show that, although the Veteran reports pain and numbness, the extent of his disability does not approximate a rating higher than is already assigned for orthopedic manifestations and that he has no objective neurological abnormalities associated with his service connected low back disability. The preponderance of evidence of record is against a finding that the Veteran's low back disability approximates the schedular criteria for a rating higher than the 20 percent rating already assigned or warrants any additional rating. This claim has also been reviewed with consideration of whether staged ratings would be warranted. While there may have been occasional fluctuations of the Veteran's degenerative changes of the lumbar spine, the evidence shows no distinct periods of time during which his symptoms have varied to such an extent that a rating in excess of 20 percent would be warranted under any diagnostic code. 38 U.S.C.A. § 5110 (West 2002); Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. All reported symptoms and the level of disability resulting from the Veterans low back disability are addressed by criteria found in the rating schedule. The General Schedule contemplates pain, limitation of motion, and neurological symptoms. To the extent that the criteria found at 38 C.F.R. § 4.71a may not list a symptom, the Board has considered 38 C.F.R. § 4.40, § 4.45, and § 4.59; provisions that include pain, incoordination, weakness, and other factors to be considered in determining the functional loss due to musculoskeletal disabilities. When comparing the Veteran's disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the disabilities rating currently assigned for his low back disability. Ratings in excess of the currently assigned rating are provided for certain manifestations of back disabilities, but the preponderance of evidence reflects that those manifestations are not present in this case. The criteria for the currently assigned rating for the Veteran's back disability more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate and no referral is required. To the extent that the Veteran's degenerative changes of the lumbar spine impacts his employability, that issue is covered by the Veteran's claim of entitlement to TDIU, which is discussed below. See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996); see also 38 C.F.R. § 4.71a, Diagnostic Code 5242. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the evidence of record does not show findings that meet the criteria for an evaluation in excess of 20 percent, the doctrine is not for application. Therefore, the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. TDIU VA may assign TDIU where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2012). TDIU may be assigned on a schedular basis under § 4.16(a) or on an extraschedular basis under § 4.16(b). Id. The schedular basis requires that certain percentage requirements are met. That is, if the Veteran has one service-connected disability, it must be rated at 60 percent or greater and if the Veteran has two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). If a Veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), a total rating due to unemployability is considered where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Service connection is currently in effect for degenerative changes of the lumbar spine, rated 20 percent disabling, and hypertension, rated 0 percent disabling. The combined disability rating is 20 percent. 38 C.F.R. § 4.25 (2012). Therefore, the percentage criteria of 38 C.F.R. § 4.16(a) are not met. The evidence of record shows that the Veteran has been unemployed since 2004, and he has consistently reported that he is unable to work due to service-connected disability. However, the Board finds that the preponderance of the evidence of record shows that the Veteran's service-connected disabilities have never rendered him unable to secure and follow a substantially gainful occupation. Associated with SSA records is a May 2007 non VA examination report documents the Veteran's report that he could not help with housework due to back pain, did not do yard work, and only drove short distances. The SSA records, however, also include findings, in a decision dated in March 2009, that the Veteran was not disabled for SSA purposes and that there were jobs that existed in significant numbers that the Veteran could perform. Those records are not evidence favorable to his claim. In an April 2006 VA general medical examination report, the Veteran stated that he could not work because his back got numb, and he reported that he was in a "paralyzed state." He reported that he spent the day sitting at home and had some daily chores, but could not finish them due to back pain. After physical and diagnostic examination, the examiner opined that no medical condition was identified that would prevent sedentary employment. This is evidence against awarding TDIU. In a November 2010 VA neurological disorders examination report, the Veteran reported that he had to stop working due to his back disability. After physical and diagnostic examination, the examiner opined that, based on his service-connected conditions alone, the Veteran was employable in sedentary/light duty occupations consistent with his education/experience, if he so chose. This is evidence against awarding TDIU. There is no evidence showing that his service connected hypertension, evaluated as noncompensable, renders him unable to follow and secure a substantially gainful occupation, whether acting alone or with his service-connected back disability. After weighing all evidence of record, the Board concludes that the preponderance of the evidence of record is against a finding that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. The medical opinions of record which addressed this issue unanimously state that the Veteran's service-connected disabilities did not render him unemployable. Indeed, the only evidence of record that states that the Veteran's service-connected disabilities render him unemployable are lay statements from the Veteran and his spouse. However, the evidence of record includes multiple reports that the Veteran was exaggerating his symptomatology on examination. In addition, the lay statements from the Veteran and his spouse regarding the impact of his back symptoms on his ability to work are not consistent with the objective medical findings. Given the reports from the May 2007 private examination and the numerous statements regarding a difference between his reported symptoms and what is found on examination, the Board concludes that the Veteran's statements as to the degree of his disability are not credible. If he had the degree of disability that he reports, the Board would expect the medical findings to be more consistent with the Veteran's reports and those of his relatives. The Board is not finding that the lay evidence is not credible because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fec. Cir. 2006). There is contemporaneous medical evidence of record. Here, the Board is weighing the contemporaneous medical evidence against the lay evidence of record. Id. The statements offered in support of his claim, including those from his relatives, necessarily derive mainly from the Veteran's own reports of what he experiences. As such, the Board finds that the lay statements from the Veteran and the other individuals regarding his functional capacity warrant low probative value. For the reasons stated above, the Board finds that the preponderance of the evidence is against entitlement to TDIU. The Veteran does not meet the percentage criteria under 38 C.F.R. § 4.16(a) and the evidence shows that his service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. Hence, his appeal as to entitlement to TDIU must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability evaluation in excess of 20 percent for degenerative changes of the lumbar spine is denied. Entitlement to TDIU is denied. ____________________________________________ JAMES G. REINHART Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs