Citation Nr: 1319638 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 03-19 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for the service-connected degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from April 1982 to April 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that granted service connection for a lumbosacral spine disability (degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint) and assigned a 20 percent initial disability rating effective from May 1, 2002. In a March 2006 decision, the Board granted an increased initial rating of 40 percent for the lumbosacral spine disability. The Veteran appealed, and a December 2007 memorandum decision by the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision. The decision of the Court was subsequently upheld by the United States Court of Appeals for the Federal Circuit in May 2008. In June 2010 the Board found that a claim for TDIU had been raised by the rating issues then on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU was thereupon incorporated into the issues before the Board. The issues identified on the title page have been remanded by the Board to the Agency of Original Jurisdiction (AOJ) on several occasions, most recently in February 2012. The AOJ has completed the development action required by the Board's remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, the Veteran submitted a letter to the Board in October 2012 that purports to be a claim of clear and unmistakable error (CUE) in the Supplemental Statement of the Case (SSOC) issued by the AOJ in September 2012. A claim of CUE is a collateral attack on an otherwise final rating decision by a VA RO; see Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). An SSOC is not a final rating decision, so a CUE claim cannot be lodged against it. However, the Board will address the Veteran's complaints in the discussion below. FINDINGS OF FACT 1. From May 1, 2002, the Veteran's lumbosacral spine disability has most closely approximated severe, but not pronounced, intervertebral disc syndrome with recurring attacks and intermittent relief; his lumbosacral spine is not unfavorably ankylosed and he has not had incapacitating episodes due to intervertebral disc syndrome. 2. The Veteran's service-connected disabilities, alone, do not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 40 percent for the service-connected lumbosacral spine disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002) 38 C.F.R. § 4.71a, Diagnostic Codes 5293, 5294-5295 (2003); 38 C.F.R. §§ 3.400, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5236, 5243 (2004-2012). 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied under the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA must also notify the claimant that, should service connection be awarded, a disability rating and an effective date for the award of benefits will be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In regard to the claim for increased initial rating, the Court has held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. 473, 490-491; see also Hartman v. Nicholson, 483 F.3d 1311, 1314-1315 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007). In regard to the issue of entitlement to TDIU, the Board added that issue to the appeal in June 2010 and directed the AOJ to provide the Veteran with appropriate notice on that issue. The AOJ provided compliant notice in July 2010, and the Veteran had ample opportunity to respond before the AOJ adjudicated the issue in October 2010. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006) (holding that VA may cure a timing defect through compliance via proper remedial measures, such as the issuance of compliant VCAA notice, followed by readjudication of the claim). See also Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). In any event, the Veteran has not alleged or demonstrated any prejudice with regards to the content or timing of notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice irregularity and clarifying that the burden of showing that an error is harmful or prejudicial normally falls upon the party attacking the agency's determination). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. Service treatment records (STRs) are on file, as are records from the Social Security Administration (SSA) and those VA and non-VA medical providers the Veteran identified as potentially having relevant treatment records. The Veteran has received appropriate VA medical examinations. In that regard, the Board remanded the case in April 2011 for additional VA examination, which was performed in May 2011; the Board has reviewed the examination reports and finds the AOJ substantially complied with the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that in the context of medical examinations/opinions only substantial compliance, not strict compliance, with the terms of the Board's opinion request is necessary). See also D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran submitted a letter in January 2010 complaining that a recent VA examination of the spine was inadequate because the examination was performed by a physician's assistant (PA). The Veteran stated a PA is not qualified to render medical opinions. However, the competency of a VA examiner is presumed, absent a showing of some evidence to the contrary. See Cox v. Nicholson, 20 Vet. App. 563 (2007); Hilkert v. West, 12 Vet. App. 145 (1999). Review of the examination report in question does not disclose any reason to consider the examination less than adequate. Further, the Veteran was subsequently examined by a VA physician in May 2011, so there is no indication that the earlier examination by a PA causes any prejudice to the Veteran. The Veteran has not made the AOJ or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of this appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Evaluation of Lumbosacral Spine Disability Applicable legal criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. During the pendency of this claim, the criteria for evaluating disabilities of the spine were revised. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003). The revised criteria may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised rating criteria. The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits. Therefore, VA must apply the new provisions from their effective date. Under the criteria in effect prior to September 23, 2002, intervertebral disc syndrome (IVDS) warrants a 10 percent rating if "mild" and a 20 percent rating if "moderate" with recurring attacks. A 40 percent evaluation is awarded for IVDS if it is severe with recurrent attacks and intermittent relief. A 60 percent evaluation is warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Under the interim revised criteria of Diagnostic Code 5293, effective September 23, 2002, IVDS is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.26 (combined rating tables) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A maximum 60 percent evaluation is warranted when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is for incapacitating episodes having a total duration of at least 1 week but less than 4 weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Under the criteria in effect prior to September 26, 2003, disabilities of the sacroiliac were rated under Diagnostic Code 5294 (sacroiliac injury and weakness), which in turn referred to the criteria for rating lumbosacral strain under Diagnostic Code 5295. Pertaining to lumbosacral strain, a rating of 10 percent was warranted with characteristic pain on motion. A rating of 20 percent was warranted with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral in standing position. A rating of 40 percent was warranted for severe disability with listing of the entire spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). Under the criteria effective from September 26, 2003, lumbosacral spine disorders other than IVDS are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242 (2012). IVDS will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined above), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, 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 will apply. A rating of 10 percent is warranted if forward flexion of the thoracolumbar spine is 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 rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 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 to 240 degrees. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Fifth, for VA compensation purposes "unfavorable ankylosis" is a condition in which the entire cervical spine, entire thoracolumbar spine or entire spine is fixed in extension or in flexion and the ankylosis results in one or more of the following: difficulty walking because of the 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 of 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. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In exceptional cases, where the evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the veteran's average earning impairment due to the service-connected disorder. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The criteria for extraschedular evaluation are that there is a marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. 38 C.F.R. § 3.321(b); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Extraschedular rating under the provisions of 38 CFR § 3.321 is requested by the RO and approved by the Under Secretary for Benefits or by the Director of Compensation and Pension Services; the Board cannot award such a benefit in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evidentiary considerations In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Background In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability on appeal. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board has reviewed all the evidence in the appellant's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As this is a claim for increased initial rating, the Board will address the severity of symptoms since the effective date of service connection on May 1, 2002. Fenderson, 12 Vet. App. 119. The Veteran had a pre-discharge examination in September 2001 in which he complained of low back pain radiating into the left lower extremity (LLE); he also complained of cramping pain in the mid-pelvic area. Physical examination showed marked tenderness to palpation of the lumbar spine and left sacroiliac (SI) joint. Pain was noted with forward flexion. Neurological examination was grossly normal (muscle strength 5/5 and reflexes and sensation intact). Computed tomography (CT) scan showed osteophytes, an undisplaced healing fracture and possible bone chip. The examiner diagnosed degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine, with DJD of both SI joints; the examiner also diagnosed a right sacral fracture, considered to be healing. X-rays performed in conjunction with the pre-discharge examination in September 2001, cited above, revealed partial sacralization of the L5 vertebral body with asymmetric prominence of the right 15 transverse process and possible pseudoarthritis process, possible L5 spondylosis and moderate degenerative change at L3-4. The Veteran presented to the VA primary care clinic (PCC) in October 2002 for vesting history and physical in conjunction with establishing care at that clinic. The Veteran denied current acute problems although he endorsed chronic low back pain. Clinical examination of the spine showed full range of motion (FROM), normal curvature, no tenderness bilaterally of the costovertebral angle (CVA), and no spinous process tenderness to palpation (TTP). Neurological examination was grossly normal for motor and sensory. Lumbosacral X-ray showed slightly decreased lordosis, transitional L5, DJD changes of L3 through L5 and mild anterior bony spurs, without compressions. The Veteran had a VA examination of the spine in October 2003 during which he complained of pain 9/10 in severity in the low back and radiating into the LLE for which he took oral medication for relief. He denied incontinence or sexual dysfunction. The examiner noted that recent magnetic resonance imaging (MRI) in July had shown discitis at L4-5 level and normal SI joints. The Veteran stated he had been advised to have spinal fusion surgery at the lower lumbar level. Physical examination showed the Veteran to walk with a slight limp to the left. Range of motion (ROM) of extension to 15 degrees, flexion to 30 degrees and lateral movement to 25 degrees in either direction. Neurological examination showed normal tendon reflexes and normal sensation in the legs. Straight leg raising (SLR) was positive at 60 degrees bilaterally. There was moderate loss of lumbar curve and exquisite tenderness to palpation of the left lumbosacral joint. There was increased paraspinous muscle tone at the lumbar level, left more than right. The examiner's impression was past history of pelvic fracture, DJD of the left SI joint, and DDD of the lumbar spine with back pain and left leg radiation. The examiner characterized the disability as "severe disability with progression." In August 2004 the Veteran was reexamined the VA physician who had performed the previous examination in October 2003. The examiner noted that the record showed herniated nucleus pulposus (HNP) at L4-5 with slight compression of the thecal sac but no foraminal stenosis. Current physical examination showed SLR positive at 45 degrees on the right and 70 degrees on the left. Sensation in the legs was normal; tendon reflexes were 2/4 at the knees bilaterally and 1/4 at the ankles bilaterally. ROM was extension to 30 degrees, flexion to 45 degrees, lateral movement to 30 degrees in each direction and rotation to 60 degrees in each direction. There was no additional limitation following limited use and no additional limitation during flare-up. As before, the Veteran had a limp to the left but was able to toe-walk and heel-walk. There was increased lumbar muscle tone on the right. The examiner's impression was DDD of the lumbar spine with back pain and left leg radiation; and, discitis of L2 through L5. The examiner stated these disorders caused moderate disability with progression and noted there had been no incapacitation during the previous year due to the back disorder. The examiner stated the functional impact of the low back was to cause intermittent numbness of the left leg, associated with walking as much as a block. The Veteran also had trouble getting into or out of a chair or out of bed. The Veteran also reported pain with dressing and difficulty driving a car. The back pain was aggravated by his current job as teacher's aide. The examiner stated that the Veteran's ability to walk was "quite compromised" in that he could not walk more than about a block without pain. On December 29, 2005, the Veteran had a workplace accident in which he was digging a ditch and ran into asphalt, resulting in immediate pain in the low back and left leg. He was treated by a worker compensation physician for three months but had no improvement. MRI of the lumbar spine showed a disc with sciatica. Several subsequent epidural steroid injections (ESIs) provided no relief. The Veteran underwent a laminectomy in November 2006, which provided some relief but the Veteran continued to have postoperative low back pain and numbness in the LLE. See letter dated in March 2007 by Dr. Benzel McMaster. A March 2006 letter from Dr. Ostrow, a neurologist, states the Veteran presented complaining of low back pain and left leg numbness following an injury in December 2005. Dr. Ostrow noted the Veteran had a previous injury in service, with history of ESIs. Dr. Ostrow's clinical impression was consistent with a spondylolisthesis at L4-5; Dr Ostrow stated the recent accident did not cause the listhesis but aggravated the underlying condition so that the Veteran was now symptomatic. In May 2006 the Veteran was examined by Dr. Hutchison, a neurosurgeon, to determine the degree to which the Veteran's current back problems were due to the workplace injury in December 2005. Dr. Hutchison stated that the Veteran's medical records prior to December 2005 clearly indicated he had severe low back problems prior to the workplace injury, and that imaging studies before and after the injury showed pretty much the same findings. Dr. Hutchison stated that the diagnosis specifically related to the worker compensation injury was aggravation of the preexisting DDD and facet joint arthritis with overall diffuse lumbar spondylosis at L4-5 and to a lesser degree at L3-4. All the changes on the Veteran's MRI antedated the workplace injury but were aggravated by the workplace injury. Documentation showed a causal relationship between the Veteran's diagnosis and his reported compensable injury. Dr. Hutchison stated he agreed with Dr. Ostrow's impression cited above. Dr. Hutchison stated that the aggravation was probably temporary in nature but he could not predict how long such aggravation would last. A June 2006 letter from Dr. Bang states the Veteran's pre-existing lumbar DDD spondylolisthesis, face joint arthritis, spondylosis and resolisthesis were aggravated by the injury sustained in December 2005, resulting in worsening low back pain with radicular symptoms. The Veteran was examined in July 2006 by Dr. Sedighi as required by his worker compensation carrier. The Veteran complained of constant lower back pain radiating into the left leg and described the pain as a sharp, stabbing, throbbing aching sensation. The Veteran also reported numbness and weakness in the LLE with fatigue, depression, balance disturbance, difficulty walking and alteration of weight. Physical therapy and ESIs had not provided significant relief. Dr. Sedighi noted previous back injury in service but stated the resulting service-related disability was stable until the injury in December 2005. Dr. Sedighi stated the Veteran obviously had a pre-existing lumbar spondylosis that had been managed conservatively and was aggravated by the work-related injury in December 2005; it was unclear why the Veteran was forced to dig a ditch, given that his pre-existing lumbar spondylosis was known at the time. The workplace injury involved aggravation of the pre-existing lumbar spondylosis which also included the instability and radiculopathy; there was no indication of disc herniation but there was evidence of spinal canal stenosis and neuroforminal stenosis that appeared to have been aggravated by the workplace injury, resulting in the Veteran's persistent, residual symptoms. The Veteran had a private electromyography/nerve conduction study (EMG/NCS) in August 2006 in which he described a low back injury in December 2005 and current low back pain of 9/10 severity, radiating into the LLE. The Veteran described his functional limitation as having to rest half the day. Activities that increased the pain included sitting, standing, walking, working, driving, sleeping and lifting. Nothing actually relieved the pain. Physical examination showed the Veteran to be in moderate discomfort secondary to low back pain radiating into the LLE. The Veteran was guarded in his movement and often winced or cried out with pain. Motor strength in the lower extremities was 5/5 except for the ankle dorsiflexors and toe extensors, which were 5-/5. Sensory testing showed some decrease, mostly in left L5 distribution. Reflexes were 2- and equal throughout. The EMG study resulted in an impression of mild-to-moderate chronic left L5 radiculopathy, unremarkable study of the right lower extremity and motor/sensory testing grossly normal except for mild prolongation of the left peroneal nerve latency at the ankle. The March 2007 treatment note by Dr. McMasters cited above states the Veteran's back injury caused the following problems that were still unresolved: inability to play sports or exercise, difficulty walking up or down stairs, difficulty lifting anything other than light weights, inability to walk without pain and inability to work due to symptoms and depression. The Veteran had a Functional Capacity Assessment (FCE) in March 2007 in which he did not attempt or did not complete a number of the requisite activities (bending, stooping, lifting, etc.) due to complaints of severe back pain. The evaluator noted the Veteran's effort and consistency as only fair, as indicated by his heart rate remaining only marginally consistent with his reported pain. Noted deficits were lumbar ROM, cane-dependent ambulation, positional tolerances and complaints of severe low back discomfort with dynamic activity. The FCE lists date of injury as December 29, 2005 (the date of the workplace-related injury). An April 2007 report by Dr. McMasters shows the Veteran's primary current complaint was low back pain that limited all physical activities. Back pain was increased by movement, bending or the Valsalva maneuver. The left leg had an aching sensation rather than severe pain. There was also persistent numbness in the lateral aspect of the left calf into the great toe. The Veteran was more limited by pain than by weakness; he denied bowel or bladder dysfunction. Physical examination showed the Veteran to be in moderate distress and to walk with a significant limp to the left. The lumbar spine had a well-healed incision that was exquisitely tender. ROM was markedly diminished in all planes. Manual muscle testing was limited by pain; there was no muscle atrophy. DTRs revealed knee and ankle jerks that were active and equal bilaterally. Sensation was diminished in L5 distribution to the left. SLR was positive at 30 degrees with back pain. Dr. McMasters' impression was chronic lumbar radiculopathy. Also in April 2007, the Veteran was examined by Dr. Kikkeri, a pain management specialist. The Veteran reported onset of symptoms in December 2005. The Veteran described his current pain as 10/10 and severe-to-excruciating in nature. Pain was made worse by sitting, standing, walking, bending over, lifting, coughing or sneezing. Medication provided only temporary pain relief. The pain had caused him emotional disturbance, affected his sleep and also affected his ability to enjoy life and personal relationships. The Veteran denied bowel or bladder disturbance and denied weakness in the lower extremities. The Veteran endorsed having had ESIs in service. Dr. Kikkeri was unable to perform ROM testing due to the excruciating nature of the Veteran's pain. Dr. Kikkeri diagnosed lumbar radiculopathy, lumbar facet syndrome and low back pain syndrome. A letter from psychologist Dr. Babrick, dated in June 2007, states the Veteran was injured in service in 1989, for which he was treated in service with ESIs. Thereafter, the Veteran continued to work out in the gym and lift weights, and after retirement from service worked without problem until he had an injury in December 2005. Since the workplace injury the Veteran had back surgery without resolution of his back pain; his job with the city had been terminated and he was presently subsisting on small worker compensation payments. A VA examination of the spine in January 2008 was performed by a PA who noted the Veteran had injured his back in service and subsequently re-injured his back in 2005. The Veteran subsequently underwent laminectomy and discectomy at one level and had residual numbness of the LLE. He noted leg and back pain and muscle spasms in the back. Pain was associated with standing more than 20 minutes or lifting more than 20 pounds. The Veteran denied flare-ups and denied true incontinence of bowel or bladder. He reported using a cane for ambulation but denied using a back brace. He denied incapacitating episodes during the previous 12 months. Physical examination showed the Veteran to have a limping gait on the right. He was tender in the lower lumbar area without current muscle spasm. ROM was 0 to 45 degrees with pain throughout. SLR was negative to 90 degrees. Motor strength was 5/5 in all muscles of the lower extremities bilaterally with give-way weakness; sensation was decreased in the bilateral S1 dermatomes and left L5 dermatome. Reflexes were 2+ in knee and ankle jerks bilaterally. There was no additional limitation following repetitive use other than pain. There were no flare-ups. The examiner's diagnosis was failed back syndrome due to injuries to the lower back in service requiring eventual laminectomy and discectomy at a single level. The Veteran presented to the VA community-based outpatient clinic (CBOC) in March 2008 to establish care and for annual physical examination. The Veteran complained of pain in the lower back and both legs, described as 7/10 in severity. He described the quality of his symptoms as numbness to legs, aching, throbbing and stabbing at times and constant in duration. Increased activity caused increase in pain. The clinician noted the Veteran to be independent in activities of daily living (ADLs) but using a cane for ambulation secondary to back pain. Clinical examination showed straight leg extension (SLE) positive bilaterally at less than 30 degrees; DTRs were normal bilaterally. Neurologic examination showed no focal deficits. The clinical impression was chronic low back pain. A VA primary care clinic note in June 2008 shows the Veteran presented requesting referral for consult for back surgery. The clinical impression was chronic back pain status post laminectomy in November 2006 with residual left leg sciatica. The clinician's plan was to obtain an MRI and refer the Veteran to neurosurgery. VA MRI of the lumbar spine in June 2008 showed an impression of degenerative changes with desiccation of the three caudal discs and with L4 laminectomy with a small amount of enhancing scar tissue that caused a slight deformity at the left side of the thecal sac. There was narrowing of the left neural foramen due to spur and disc bulge, and there was also canal stenosis. At the L3-4 disc level there was posterior disc bulge that indented the spinal canal and facet joint hypertrophy that narrowed both neural foramina. Following the MRI described above the Veteran presented to the VA primary care clinic for follow-up. He reported having had an original back injury in service that was aggravated after service by a workplace injury for which he received worker compensation. He stated he had surgery in November 2006 for decompression but no fusion; following surgery he had left leg and great toe numbness and now wanted a second opinion. He reported current chronic low back pain of 7/10 intensity, but denied incontinence of bowel or bladder. Clinical examination showed SLR positive at 30 degrees bilaterally and decreased ROM of the lumbar vertebrae. Neurological examination showed decreased DTR of he left patellar and Achilles to 1/4 and decreased motor strength of the left knee and hip to 4/5. The clinical impression was lumbar radiculitis; the treatment plan was referral to neurosurgery for evaluation. The Veteran had a VA pain management clinic referral in September 2008 in which he reported low back pain since service. His current pain was mostly in the lumbosacral junction with LLE numbness and tingling. He expressed frustration at being advised by his worker compensation carrier that another surgery would be required, and asked for a second opinion by VA as to whether such surgery was in fact necessary. The Veteran reported aggravating factors including weightbearing activities and prolonged standing or walking; relieving factors included bed rest. Clinical examination showed almost no active ROM in flexion, extension or rotation. There was mild-to-moderate midline TTP along the surgical scars. Axial loading caused increased pain bilaterally, and the Veteran was barely able to stand on his toes or heels. Strength was 5/5. The clinical impression was chronic low back pain secondary to a failed back surgery syndrome and associated LLE radicular symptoms consistent with L3-4 distribution. The Veteran was noted to not be on any narcotic pain medication and was discharged from the pain clinic; the clinician noted the Veteran could benefit from epidural steroid injection or decompression at L4-5 if he desired to pursue such options in the future. The Veteran had a VA examination of the spine in January 2010, performed by a physician's assistant who reviewed the claims file. The Veteran endorsed having injured his back in service and re-injured his back in a workplace accident in 2005. The Veteran subsequently had laminectomy surgery but the postoperative benefit did not last long. The Veteran complained of continued and increasing low back pain with aching and numbness into the LLE. The Veteran characterized his back pain as 7/10 in intensity; he treated the pain with prescription medications provided by worker compensation. Coughing and sneezing increased pain. He denied bowel or bladder impairment. He reported flare-ups 1-2 times per day that caused him to seek self-imposed bed rest. The Veteran reported being able to walk less than a quarter mile and to be unable to stand for long. He stated he was able to perform personal hygiene and to feed himself but he needed help to dress, and he was unable to perform housework or yard work. The examiner also reviewed recent MRI studies that were performed by a private provider and brought by the Veteran. Physical examination showed the Veteran to have antalgic gait with a cane. The lumbar spine had its normal architecture. ROM was flexion to 20 degrees with pain at 20 degrees; repetitive motion testing resulted in increased pain and fatigue but no increased weakness, lack of endurance or incoordination. There were no palpable muscle spasms. DTRs were 1/4 in the right patella and 2/4 in the left. Achilles reflexes were 1/4 bilaterally. SLR was positive in the sitting position bilaterally and at 30 degrees in the supine position. The Veteran had a well-healed surgical scar that was not clinically significant. There was decreased sensation of the LLE particularly along the lateral aspect of the calf and foot. The examiner was asked to examine the SI joint, which is service-connected and incorporated into the evaluation of the lumbosacral spine disability. The Veteran was unable to assess the pain from the SI joint due to his concurrent back condition. The Veteran did not take medications for the SI joint specifically and had no impairment in activities due to the SI joint specifically. Generally, the SI joint was subjectively overshadowed by the back condition. Objectively, examination of the SI joint was grossly normal and showed no tenderness, swelling or other clinical abnormality. The examiner diagnosed current DDD and DJD of the lumbosacral spine and status post two-level lumbar laminectomy with scar formation and disc bulging radicular symptoms. The examiner noted the Veteran was doing well after service until his work-related injury, and that the Veteran admitted having no leg pain until that injury. The Veteran's employment after service was a very physical job, and the Veteran was able to perform his duties faithfully despite back pain for two years until he was injured at work. The examiner stated an opinion that the Veteran's current lumbar spine condition with radicular symptoms and the necessitation of surgery are more likely than not related to his workplace injury and not to the service-connected disability. The examiner was unable to distinguish which components of the Veteran's low back symptoms were related to the service-connected condition versus the workplace-related condition because his current complaints were clouded by both disabilities (service-connected and workplace-related). However, the radiculopathy into the lower extremities is more likely related to the workplace accident as symptoms were absent prior to that accident. The Veteran had a private MRI of the lumbosacral spine in March 2010 that showed an impression of moderate bilateral L4-5 neural foraminal stenosis due to moderate-to-severe degenerative changes; moderate bilateral L3-4 neural foraminal stenosis due to diffuse disc bulge and degenerative changes; mild L2-3 posterior annular disc bulge; and, status post L4-5 surgery with post-surgical changes consisting of mild L2-3 degenerative changes, moderate L3-4 degenerative changes and moderate-to-severe L4-5 degenerative changes. CT scan of the lumbar spine in July 2010 by a private provider showed an impression grossly consistent with the MRI noted above. The Veteran underwent surgery at Southwestern Medical Center in November 2010 for placement of a spinal cord stimulator (SCS). The discharge diagnosis was failed back surgery syndrome. The Veteran had a VA examination of the spine in May 2011, performed by a physician who reviewed the claims file. The examiner was specifically asked to determine the degree to which the Veteran's current low back symptoms are attributable to the 2005 workplace injury versus the in-service injury for which service connection is in effect. The Veteran complained of current low back pain on a daily basis, with twinges and flairs that were generally momentary and that decreased when sitting. The Veteran's chronic pain was high in intensity and radiated into the left thigh and calf and into the toes of the left foot with associated paresthesias on the left. He denied radicular radiation in the right. The Veteran used a cane in ambulation due to pain in his low back and left leg. The Veteran reported having a spinal stimulator implanted the previous year, with dramatically beneficial results in regard to the level of his pain. The Veteran had not worked since his workplace injury in 2005, due to his low back and left leg problems; the Veteran reported that prior to that workplace injury he was able to function on a daily basis in a job that required a good deal of standing and walking. The Veteran denied impairment of the bowel or bladder and reported he had no difficulty with ADLs. The Veteran was able to drive without difficulty. He took prescription medication for pain, without side effects. The Veteran denied prolonged or sustained problems with flare-ups, which generally lasted less than an hour and responded to rest. Physical examination showed several well-healed surgical scars that were not clinically significant. ROM was flexion to 40 degrees with pain throughout. There was no kyphosis, scoliosis lordosis or reverse lordosis. No ankylosis was noted. Knee and ankle jerks were considered normal. Muscle strength testing in the hip, knee and ankle was also normal bilaterally. SLR was positive bilaterally for lower lumbar pain with left radiculopathy at 10 degrees. Sensation was impaired in the LLE. The examiner diagnosed lumbar DDD with secondary nucleus pulposus at levels L4 and L5 with secondary left radiculopathy status post laminectomy and spinal stimulator implant. The examiner stated an opinion that the Veteran's DDD and HNP are well documented in the STRs. The examiner also noted the Veteran had served for 20 years and had performed at least 75 parachute jumps, with associated multiple injuries. Although it was noted that the Veteran was able to tolerate his work prior to the workplace injury, the examiner expressed a medical opinion that the Veteran had simply shifted the L4 and L5 discs into a position where they impinged on the spinal nerves exiting at those levels as a result of the workplace injury; the shifting of the degenerated discs at these two levels would have occurred eventually regardless of the type of work the Veteran was engaged in. Therefore, the medical examiner expressed an opinion that all of the Veteran's current spinal disability is at least as likely as not to be caused by and a direct result of the documented service-connected injury. Analysis The Veteran currently has a 40 percent rating effective from May 1, 2002. His disability may be evaluated as intervertebral disc syndrome (IVDS) under the criteria of Diagnostic Code (DC) 5293 (2002); after September 2002 the "incapacitating episodes" criteria for IVDS may be applied using DC 5293 (2003) and DC 5343 (2004-2012). Alternatively, the Veteran may be evaluated for orthopedic disability of the spine under the criteria of DC 5292 (limitation of motion of the lumbar spine) or DC 5294 (sacroiliac injury)/5294 (lumbosacral strain) as in effect prior to September 2003; after September 2003 the criteria of the General Rating Formula may be applied. Beginning with IVDS, DC 5293 (2002) provides the current 40 percent rating is warranted for severe IVDS with recurring attacks and intermittent relief. A higher 60 percent rating is warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. Review of the file does not show the Veteran's IVDS approximates the criteria for the 60 percent rating under DC 5293 (2002) cited above. The Veteran demonstrably has characteristic pain, but the examination reports of record are silent in regard to spasm, except for examinations in January 2008 and January 2010 that specifically stated there were no spasms on examination. Similarly, examination reports are silent in regard to absence of ankle jerks except for examinations in April 2007, January 2008 and May 2011 that specifically showed ankle jerks were present. The Veteran demonstrated radicular symptoms of pain and decreased sensation in the LLE, but there is no indication of atrophy or loss of muscle strength in the lower extremities and the Veteran has consistently denied bowel or bladder dysfunction. Finally, the Veteran has asserted to examiners that he does obtain intermittent relief with rest. Therefore, the evidence of record does not show neurological findings appropriate to the site of a diseased disc that are commensurate with the 60 percent rating under DC 5293 (2002). The Veteran has not asserted, and the evidence of record does not show, qualifying incapacitating episodes of IVDS to warrant alternative rating under DC 5293 (2003) and DC 5343 (2004-2012). Turning to applicable orthopedic rating criteria, the current 40 percent rating is the highest schedular rating available under DCs 5292 and 5294/5295 in effect prior to September 2003. After September 2003, the General Rating Formula provides for a 50 percent rating when there is unfavorable ankylosis of the entire thoracolumbar spine, or a 100 percent rating when there is unfavorable ankylosis of the entire spine, but there is no medical evidence that the Veteran's spine is ankylosed to any degree, and in fact the most recent examination in May 2011 stated the spine was not ankylosed. The Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca but finds that application of these provisions does not show a disability picture that more closely approximates the schedular criteria for higher rating. The Veteran's primary complaint throughout the course of the appeal has been severe pain in the lower back and LLE; there is no medical evidence of additional limitation of function due to flare-ups or repetitive movement. As shown above, the Veteran's reported pain does not approximate the criteria for "pronounced" IVDS as defined in DC 5292 (2002), and the rating criteria in effect since September 2003 specifically apply with or without pain, whether or not it radiates. In sum, there is insufficient additional limitation of function due to pain, fatigability, weakness, incoordination or lack of endurance to approximate the criteria for a higher rating. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence cited above the Board has considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers and examiners. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). In this case, the Veteran's lay evidence is offered to show the severity of his symptoms; a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Even affording the Veteran full competence and credibility in reporting his symptoms, the lay evidence does not show a disability picture more closely approximating the criteria for a higher schedular rating. As noted above, the Veteran's complaints of severe low back pain and associated pain and numbness in the LLE have been accepted by various medical providers and examiners, but his subjective symptoms do not show pronounced IVDS as defined by the criteria of DC 5293 (2002). The Veteran's lay evidence also does not assert qualifying incapacitating episodes of IVDS or ankylosis that would warrant higher rating under the criteria in effect since September 2002. The Veteran has argued that the VA examination in October 2003, in which the examining physician characterized his back disability as a "severe disability with progression," demonstrates entitlement to a higher rating. However, under the criteria in effect prior to September 2002, "severe" IVDS and "severe" lumbosacral strain both warrant evaluations of 40 percent under the respective diagnostic codes, so the examiner's designation of the disability as "severe" does not constitute evidence of entitlement to a higher rating. The rating criteria in effect from September 2002 do not characterize disability levels as "severe," "moderate," etc. The currently assigned 40 percent rating adequately contemplates the Veteran's objective and subjective symptoms. The Veteran complained in his letter of October 2012 that the AOJ had not addressed the medical records from the University of Texas Southwestern Medical Center in November 2010 relating to emplacement of a spinal cord stimulator, but these records provide no information suggesting a entitlement to increased rating for the underlying lumbosacral spine disability; there was accordingly no reason for the AOJ to address such records in the SSOC. The Veteran also complained the AOJ had failed to implement 38 C.F.R. § 4.2 (interpretation of examination reports), which relates to the responsibility of the adjudicator to interpret examination reports in light of the whole recorded history, but this is not supported by the record. The September 2012 SSOC of which the Veteran specifically complains addresses only evidence received since the last adjudication (in this case, evidence received since the earlier SSOC in October 2010); review of all the adjudicative actions by the AOJ (rating decision, SOC and subsequent SSOCs) shows the AOJ has in fact considered all relevant examination reports. The Veteran also complained the AOJ had not fully considered rating criteria pertaining to limitation for range of motion, but as shown above the Veteran's current rating of 40 percent is the highest rating available for limitation of range of motion so there was no reason for the AOJ to address such limitation. In sum, the Board has found the criteria for an initial schedular rating higher than 40 percent are not shown under either the old or new rating criteria. Further, because the criteria for rating higher than 40 percent were not shown during any distinct period on appeal, "staged" rating is not warranted. Fenderson, 12 Vet. App. 119. In February 2012 the Board referred the file to the Director of Compensation and Pension Service for review of extraschedular consideration under 38 C.F.R. § 4.16(b), but the Director also considered entitlement to extraschedular consideration under 38 C.F.R. § 3.321(a). The Director noted the history of the disability in detail, specifically including the May 2011 medical examination cited above. The Director stated that although the entire evaluation of the Veteran's disability is attributable to the service-connected disability, and not to the intervening injury, the results of the examination do not warrant the current 40 percent evaluation assigned. The Director stated there is no evidence in this case of an exceptional or unusual disability pattern that renders application of the regular rating schedule impractical, in that there are higher evaluations for greater levels of disability and no evidence of frequent hospitalization. The Director acknowledged that there is evidence of interference with employment but stated there is no evidence of marked interference with sedentary employment. Accordingly, the Director determined that extraschedular evaluation under 38 C.F.R. § 3.321(a) is not warranted. The Veteran complained in his letter of October 2012 that in denying extraschedular evaluation the AOJ and Director of Compensation had not considered the grant of SSA benefits. The Director's report shows the Director in fact reviewed and considered the grant of SSA benefits. Further, the findings of the Social Security Administration are not controlling in the adjudication of VA benefits. See Murincsac v. Derwinski, 2 Vet. App. 363, 370 (1992). Finally, the Board is cognizant of the Veteran's scars of the lumbar spine. The Veteran has a scar in the upper lumbar region which is 7 centimeters by 1/2 centimeter in length; a scar over the left posterior pelvis which is 7 centimeters by 1/2 centimeter; and a 4.5 centimeter by 3 millimeter car over the midline of the lower lumbar segment. All of the scars are well healed, without pain or tenderness to the site. There is no skin breakdown or deep tissue damage. The scars are superficial. There is no limitation of motion, inflammation, edema, or keloid formation of any scar. See VA examinations report dated in January 2010 & June 2011. Thus, the assignment of a separate rating in this regard is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (in effect prior to August 30, 2002), (in effect prior to October 23, 2008), (2012). Based on the evidence and analysis above the Board has found the criteria for an initial evaluation higher than 40 percent for the service-connected lumbosacral spine disability are not met. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. CONTINUED ON THE NEXT PAGE Entitlement to TDIU The Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). As such, the Veteran's claim for TDIU is addressed below. Applicable legal criteria It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). Rating boards should submit to the Director, Compensation and Pension Services, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). The effect of a service-connected disability appears to be measured differently for purposes of extraschedular evaluation under 38 CFR § 3.321(b)(1) and for purposes of a TDIU claim under 38 CFR § 4.16. Kellar v. Brown, 6 Vet. App. 157, 162 (1994). Extraschedular consideration under 38 C.F.R. § 4.16 does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996). For a veteran to prevail on a total rating claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Evidence and analysis The Veteran is service-connected for the following disabilities: a lumbosacral spine disability, rated as 40 percent disabling; DJD of the right elbow, rated as 10 percent disabling; and, tinnitus, rated as 10 percent disabling. He also has service connection for DJD of the left forefoot; bilateral hearing loss; hypertension; residuals of laceration of the left long finger; scar on the left long finger; and, residuals of laceration of the left index finger, all of which are rated as noncompensable. His combined rating for service-connected disabilities is 50 percent. The Board notes as a threshold matter that the Veteran does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). The question before the Board is accordingly whether referral for extraschedular consideration is warranted under the provisions of 38 C.F.R. § 4.16(b). The file contains a letter dated August 2006 notifying the Veteran that he was being terminated from employment by the City of Heath (Texas) because he had been absent for more than 120 days due to a work-related back injury. Review of the Veteran's SSA disability file shows the Veteran initially requested disability benefits based on lumbar laminectomy, but that claim was denied by SSA in March 2007. A subsequent SSA decision in July 2007 granted disability benefits due to depression (primary diagnosis); no secondary diagnosis was shown on the award. Per a psychological evaluation for SSA, the Veteran had manifested a very strong fear of re-injury, described as being of "phobic proportions" that compromised the Veteran's capacity to sustain a work week. The July 2007 SSA decision granted disability benefits effective from December 31, 2006. The decision letter explained that the Veteran did not meet the requirements for disability until examination in May 2007, but it was reasonable to assume his disability began as early as December 2006; there was insufficient evidence to show the Veteran was disabled prior to that date. The SSA file contains a June 2007 letter from psychologist Dr. Babrick stating the Veteran was injured in service in 1989, but after that injury the Veteran worked without apparent difficulty until he was injured on the job in December 2005. Since the workplace injury the Veteran had back surgery without resolution of his back pain; his job with the city had been terminated and he was presently subsisting on small worker compensation payments. Dr. Babrick noted the Veteran's problem finding new employment was related more to his fear of re-injury than to actual physical limitation. Dr. Babrick stated the Veteran expressed a great deal of frustration, futility, anger, humiliation and fears about the future as a result of his limited functioning; the Veteran was also very angry about the way he was hurt in December 2005, noting the supervisor was "being malicious" and as a result the Veteran was injured and how had disabling residuals of that injury. Dr. Babrick noted that the Veteran had an associate's degree and had worked in positions including OSHA inspector (he was terminated during probationary period due to alleged conflict of interest), substitute teacher and tax preparer; he also worked in the municipal water department until that job was terminated by policy after the Veteran had been absent for a protracted period after the workplace injury in December 2005. In November 2007 the Veteran submitted a substantive appeal in regard to a rating decision that denied service connection for hypertension and tinnitus. In a letter attached to that appeal the Veteran asserted entitlement to a TDIU because he had no income other than worker compensation. He enclosed W-2 income tax forms from tax year 2006 showing he had received $2,376.47 in wages from a tax preparation service and $9,162.43 in wages from the City of Heath (Texas) during that year; the Veteran explained that W-2 forms for 2007 were not yet available but he was submitting the 2006 forms in lieu thereof. A Report of Contact in February 2008 shows the Veteran withdrew his pending claim for TDIU and substituted a claim for temporary total disability rating based on convalescence after surgery. The Board remanded the case in June 2010 for the purpose of affording the Veteran a VA examination to determine whether the Veteran was rendered unemployable by his service-connected disabilities. An audiological evaluation was performed in July 2010; the examining audiologist stated that hearing loss would not render the Veteran unemployable because gainful employment should be possible with an appropriate hearing aid. A hypertension examination was performed in August by a PA who noted the Veteran was taking medication for hypertension but was symptom-free at the time of examination. A joints examination was performed by a PA in August 2010 who stated that the service-connected elbow, foot and hand disabilities did not render the Veteran unemployable, based on the relatively mild symptoms shown on examination. The examiner stated the Veteran's lumbar spine disability did render him unemployable, but such unemployability was due to residuals of the workplace accident in 2005 rather than the service-connected lumbar spine condition. The examiner stated as rationale that the Veteran was able to maintain gainful employment until his injury in 2005, and such injury was the main reason he was not able to continue employment at the previous level. Thereafter, the Veteran had a VA medical examination in May 2011 in which the examiner opined that the Veteran's entire current lumbosacral spine disability is due to service, not to the workplace accident in 2005. Based on this examination report, the Board directed the AOJ to submit the Veteran's claim to the Under Secretary for Benefits or the Director of Compensation and Pension Service for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). In August 2012 the file was reviewed by the Director of Compensation Service. The Director noted the history of the claim in detail, including the May 2011 examination report cited above. The Director also noted that SSA records showed the Veteran to be unemployable due to service-connected and nonservice-connected disabilities. The Director stated that although there is evidence that the Veteran's back disability is entirely due to his service-connected lumbosacral spine disability, the evidence in the claims folder shows the Veteran may not be unemployable in a sedentary capacity. The Director accordingly found that the evidence of record does not support the notion that the Veteran is unemployable under any circumstances, and denied entitlement to extraschedular consideration under 38 C.F.R. § 4.16(b). As indicated, the file contains conflicting opinion as to whether the Veteran is rendered unemployable, and, if so, whether such unemployability is due to his service-connected back disability. The VA examiner in August 2010 stated the Veteran was rendered unemployable by his back disability, while the Director of Compensation stated the Veteran is not rendered unemployable at all in that he is physically able to maintain gainful sedentary employment. Bridging the gap between these two opinions was the VA examination in May 2011 that contradicted the opinion of the previous examiner as to whether the Veteran's entire back disability should be attributed to service; the May 2011 opinion was accepted by the AOJ and the Director as being the more probative of the two. The May 2011 opinion did not comment on employability. It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board finds at the outset that unemployability is not a purely medical question, as it involves the medical question of severity of symptoms but also involves nonmedical questions such as education, training and employment history. Further, the Director of Pensions is specifically charged by VA to consider extraschedular claims. The Board accordingly finds that the Director of Compensation, while not a medical professional, is qualified to provide an opinion regarding employability. Turning to the merits of the two conflicting opinions, the Board finds the opinion of the VA examiner in August 2010 does not meet the standard articulated as the third factor in Nieves-Rodriguez, in that there is no rationale for the assertion that the Veteran's back disability renders him unemployable. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record; see Miller v. West, 11 Vet. App. 345, 348 (1998). The Director of Compensation, in contrast, was specifically charged to determine employability, and articulated an opinion that is supported by a rationale based on the record. The Director's opinion is accordingly more probative under the standards of Nieves-Rodriguez. The Board also finds the Director's decision is consistent with the evidence of record. The Veteran is shown to have an Associate's Degree, and is shown also to have years of experience in tax preparation; he is thus suited by education and work experience to perform sedentary tasks. His service-connected disabilities are not shown to render him unable to perform such sedentary tasks. Thus, the evidence of record does not show the Veteran to be unable to obtain or maintain gainful employment due solely to his service-connected disabilities. The Veteran has asserted in his correspondence to VA that the grant of disability by the SSA supports his claim for TDIU. The Board disagrees. The Veteran was granted SSA benefits in July 2007 because his nonservice-connected depression and irritability prevented him from working in even a sedentary environment; the SSA file does not show the Veteran to have been physically unable to perform at least sedentary work, and a February 2007 Functional Capacity Assessment associated with the SSA disability file shows the Veteran to be capable of sedentary work. Thus, the earlier SSA determination does not contradict the finding of the Director of Compensation. The Veteran has also insisted in his correspondence to VA that entitlement to TDIU is demonstrated by the notation of the VA examiner in October 2003 (prior to the workplace injury) that the Veteran had been advised to have spinal fusion surgery; see e.g. letter from the Veteran dated in May 2007. A close reading of the examination report in question does not show that the examiner was recommending surgery; rather, the examiner was duly recording what the Veteran had reportedly been advised by other providers. In any event, a requirement for spinal fusion surgery does not demonstrate permanent unemployability, as evidenced in the Veteran's case by the SSA determination in December 2006 (several years after the October 2003 medical examination in question) that the Veteran was not currently unemployable due to his low back disability. Based on the evidence and analysis above the Board finds the criteria for assignment of a TDIU are not met. Accordingly, the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. CONTINUED ON THE NEXT PAGE ORDER An initial rating in excess of 40 percent for the service-connected degenerative joint disease and degenerative disc disease of the lumbar spine and sacroiliac joint is denied. Entitlement to a TDIU due to service-connected disabilities is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs