Citation Nr: 1320131 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 99-00 213A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a rating higher than 40 percent for lumbosacral strain on an extraschedular basis. 2. Entitlement to an effective date prior to March 31, 2003, for the grant of a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1963 to August 1966. This matter initially came before the Board of Veterans' Appeals (Board) on appeal of the following rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO): in November 1998, the RO denied the claim for a total disability compensation rating based on individual unemployability; and in March 2004, the RO denied the claim for an increased rating for lumbosacral strain. In May 2000, the Board remanded the claim for a total disability compensation rating based on individual unemployability to the RO for further development. In a decision in May 2005, the Board, in pertinent part, remanded for further development the claims of increased rating for lumbosacral strain and for a total disability compensation rating based on individual unemployability. In a decision in March 2009, the Board, in pertinent part, denied the claim for an increased rating for lumbosacral strain and remanded for further development the claim for a total disability rating based on individual unemployability. The Veteran then appealed the Board decision of March 2009 to the United States Court of Appeals for Veterans Claims (Court). In an Order in December 2009, the Court granted a Joint Motion for Remand of the parties, the VA Secretary and the Veteran through counsel, vacated the Board's decision denying the claim for an increased rating for lumbosacral strain, and remanded the claim to the Board pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Joint Motion. In December 2010, the Board remanded the case to the RO for additional development. The RO in a May 2010 rating decision granted a total disability rating for compensation based on individual unemployability, effective in March 2007. The Veteran appealed the effective date of the rating assignment. Then, in a December 2010 rating decision, the RO assigned an earlier effective date of March 31, 2003, for a total disability rating for compensation. The Veteran continues his appeal for an earlier effective date. In an April 2012 decision, the Board, in pertinent part, denied a schedular rating in excess of 40 percent for lumbosacral strain, and remanded the issues of entitlement to a rating in excess of 40 percent for lumbosacral strain on an extraschedular basis, and for an effective date prior to March 31, 2003 for the award of TDIU, to the RO for appropriate consideration. FINDINGS OF FACT 1. The Veteran's low back disability does not present such an exceptional or unusual disability picture that the available schedular evaluations are inadequate. 2. The Veteran filed his claim of entitlement to a TDIU in April 1998. Entitlement to TDIU was granted in a May 2010 rating decision, and an effective date of March 31, 2003 was assigned in a December 2010 rating decision; there is no evidence of factually ascertainable entitlement to TDIU prior to March 31, 2003. CONCLUSIONS OF LAW 1. The criteria for an extraschedular evaluation for the Veteran's lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 3.321(b)(1) (2012). 2. The criteria for an effective date earlier than March 31, 2003, for the grant of a TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.341, 3.400, 4.16 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran appealed the effective date of the grant of the TDIU rating. The Federal Circuit held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the effective date assigned by a RO for a compensation award. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this regard, once a decision has been made awarding service connection, a disability rating, and an effective date, § 5103(a) notice has served its purpose, as the claim has already been substantiated. See Sutton v. Nicholson, 20 Vet. App. 419 (2006). The RO provided post-adjudication VCAA notice by letters, dated in January 2004 February 2004 (regarding the increased rating claim) and March 2006 (Dingess notice). The notice included the type of evidence needed to substantiate the claim for a higher rating, namely, evidence to show that the disability was worse and the effect of the worsening on employment and daily life. Additionally, the Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. In March 2006, the RO notified of the provisions for the effective date of a claim and for the degree of disability assignable for the claims. As for content and timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of a claim for service connection); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (claim-specific notice, namely, a worsening or increase in severity of the disability and the effect that worsening has on employment). To the extent the VCAA notice came after to the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured after the RO provided substantial content-complying VCAA notice the claim was readjudicated, as evidenced by the supplemental statements of the case, dated in August 2011, August 2012, and October 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was provided an opportunity to appear for a hearing, but he declined a hearing. The RO obtained the service treatment records, VA records, and records from the Social Security Administration. The Veteran has not identified any additional records such as private treatment records for the RO to obtain on his behalf. VA has conducted medical inquiry in an effort to substantiate the Veteran's increased rating claims. 38 U.S.C.A. § 5103A(d). The Veteran was afforded VA examinations in February 2004, December 2006, March 2007, September 2008, and April 2011, to evaluate the disabilities. As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Lumbosacral Strain-Extraschedular Rating The Board's April 2012 decision determined that the Veteran was not entitled to a schedular rating in excess of 40 percent for his service connected lumbosacral strain. The issue of whether an extraschedular rating was warranted was remanded to the RO. In a May 2012 determination, the RO found that referral of the issue of extraschedular rating to the Under Secretary for Benefits or the Director, Compensation and Pension Service, was not warranted. The Rating Schedule represent as far as can practicably be determined the average impairment in earning capacity in civil occupations resulting from disability. In an exceptional case where the schedular rating is found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station (Regional Office) submission, is authorized to approve an extra-schedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(a). The governing norm in an exceptional case is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(2). While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996); Barringer v. Peake, 22 Vet. App. 242 (2008). There is a three-step analysis for determining whether an extraschedular rating is appropriate. The first step or threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. If the schedular ratings for the service-connected disability are inadequate, the second step is to determine whether there is an exceptional disability picture with such related factors as marked interference with employment and frequent periods of hospitalization. If the factors of step two are met, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As for the first step or threshold factor, that is, whether the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. In other words, the Board need not consider steps two and three. The Veteran's service medical records show that he sustained an in-service back injury when he fell from a ladder, which became a chronic disability. In a January 1967 rating decision, the RO granted service connection for lumbosacral strain and assigned a 10 percent rating. In a February 1998 rating decision, the RO granted a 20 percent rating for the disability, and then pursuant to a Board decision in March 1999, the disability rating was increased to 40 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5295, for lumbosacral strain. The lumbosacral strain is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (effective September 26, 2003). The Veteran's current claim for a higher rating for lumbosacral strain was received by the RO in March 2003, and during the period considered in this appeal, the regulations pertaining to evaluating disabilities of the spine were revised, effective September 23, 2002 and again effective on September 26, 2003. When the rating criteria are amended during the course of the appeal, the Board considers both the old and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. VAOPGCPREC 3-2000. At the time of a VA examination in March 2004, range of motion testing indicated flexion was to 15 degrees, extension was to 0 degrees, and left and right lateral flexion was to 10 degrees. Repetition resulted in no change in range of motion and there were no flare-ups. On VA examination in December 2006, the Veteran complained of low back pain and stiffness. He stated that he had 10 to 12 incapacitating episodes over the previous year, but he did not see a physician during any episode. He was unable to flex more than a few degrees and extension was described as also limited, and he was not able to side bend or rotate due to pain. There was no evidence of sensory deficit in the legs or evidence of significant motor deficit. Deep tendon reflexes were present and symmetrical bilaterally (+1). The examiner commented that the Veteran displayed symptoms grossly out of proportion to the physical findings. The diagnosis was degenerative intervertebral disk disease of the lower lumbar segments without evidence of radiculopathy or radicular irritation. On VA examination in March 2007, the Veteran complained of increasing pain in the low back. Evaluation revealed no gross deformities of the lumbar spine with diffuse tenderness. Range of motion of the lumbar spine was 0 degrees of flexion with complaints of severe pain. Straight leg raising could be carried to 80 degrees bilaterally without any back pain elicited. There was spotty hypalgesia of the lateral aspect of the right leg. Motor strength was 5/5 bilaterally. Deep tendon reflexes in the lower extremities were present and symmetrical bilaterally (+1). The diagnoses included degenerative intervertebral disc disease of the lumbar spine without radiculopathy or radicular irritation. The examiner opined that the Veteran exhibited an extreme functional overlay with regard to his back condition. On VA examination in September 2008, there was no sensory or motor deficit in either leg noted. Deep tendon reflexes in the lower extremities were present and symmetrical bilaterally (+1). Range of motion in the thoracolumbar spine was markedly restricted and any attempt to move in any direction caused severe back pain. It was noted that lumbar range of motion and strength were diminished due to complaints of pain on attempts at repetitive motion testing. The examiner also remarked that the Veteran exhibited rather marked symptom magnification. He diagnosed degenerative intervertebral disc disease of the lumbar spine without evidence of radiculopathy or radicular irritation. He believed that the Veteran's symptoms regarding the lumbar spine were excessive and exaggerated. On VA examination in April 2011, it was reported that the Veteran had good response to treatment for his low back. He related that he had flare-ups of back pain every two to three weeks, lasting from three to seven days. He stated that he had significant additional loss of motion of the back during a flare-up (not able to bend at all at the waist). He reported a history of decreased motion, stiffness, weakness, spasm, and daily (moderate) pain, but there have been no documentation of radiation of pain since 2009. There were no incapacitating episodes of spine disability. On examination, range of motion testing showed flexion from 0 degrees to 32 degrees, extension from 0 degrees to 12 degrees, left lateral flexion from 0 degrees to 12 degrees, right lateral flexion from 0 degrees to 10 degrees, left lateral rotation from 0 degrees to 15 degrees, and right lateral rotation from 0 degrees to 13 degrees. There was objective evidence of pain following repetitive motion but no additional limitations after three repetitions of range of motion. Knee jerks were 2+ (normal) bilaterally, ankle jerks were 1+ (hypoactive) bilaterally, and Babinski's sign was normal bilaterally. Sensory evaluation in the left lower extremity was normal and in the right lower extremity there was decreased sensation to light touch in the right superficial peroneal nerve. VA outpatient records show that the Veteran was treated continuously for chronic low back pain. During a March 2003 orthopedic clinic visit, he complained of occasional back pain. He had 5/5 strength in the lower extremities. Sensation was slightly decreased in the L5 distribution in the leg and top of the foot. Straight leg raising was positive for pain down the posterior lateral aspect of the thigh and leg to the ankle at 30 degrees. Reflexes were 2+ at the ankles and knees. X-rays of the lumbar spine showed degenerative disc disease at L5 with facet joint arthritis. In the assessment, the examiner thought the Veteran was having radicular type symptoms with numbness and tingling in the ankle and leg, with occasional radiation of pain to the right knee. On a physical therapy consultation in January 2004, it was noted that the back pain was relieved by a change in positions and medication. Range of motion testing showed moderate limitation of flexion with low back pulling and tightness, 5 degrees of extension with low back pain, and moderate to severe limitation on sidebending and rotation bilaterally. Strength was within full limits except that hip strength was from 3/5 to 4/5 and the quadriceps were 4/5. Neurologically, deep tendon reflexes were 2+ at the knees and ankles. Proprioception, coordination, and sensation were all intact in the lower extremities. VA records show that in September 2005 the Veteran was seen in the emergency room with complaints of flank pain. There was tenderness in the paraspinal region from the mid-lung zones to the L4-5 level, without sensory loss. Neurologically, there were no symptoms, numbness, tingling, or sensory loss. The diagnosis was musculoskeletal back pain. In March 2006, X-rays of the lumbosacral spine showed normal alignment and curvature, slight narrowing and sclerosis of the facets and of the disc spaces at L5-S1, and slight osteophytic formation of the L4-5 disc space. In April 2006, during physical therapy the lumbar spine range of motion was within full limits except for 50 percent limitation of flexion, 75 percent limitation of extension, and sidebending and rotation were much decreased. Lower extremity strength was 4/5. Neurologically, deep tendon reflexes were 2+ at the knees and ankles. Proprioception, coordination, and sensation were all intact in the lower extremities. In October 2006, the Veteran reported his low back pain continued to act up and was worse on the right, associated with spasm of the paraspinal muscle. He went to physical therapy and reported that Percocet continued to control the pain. In June 2010, there was slight decreased sensation and burning down the right posterior aspect of the leg to the ankle from the sciatic notch. The diagnoses included sciatic lumbar back pain with radiculopathy. The same diagnosis was given by the same physician's assistant in July 2011. Criteria effective prior to September 23, 2002 Under the "old" rating criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis due to trauma established by X-ray findings is rated as degenerative arthritis on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. VA X-rays of the lumbosacral spine, as reported in March 2003 and March 2006, for example, support the finding of degenerative changes, particularly at L5-S1, including degenerative disc disease with facet joint arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5292, the maximum rating for limitation of motion of the lumbar spine is 40 percent for severe limited motion. A higher rating of 50 percent is permitted if there is ankylosis of the lumbar spine in an unfavorable position. 38 C.F.R. § 4.71a, Diagnostic Code 5289. In this case, the medical evidence from VA compensation examinations and outpatient evaluations does not show that the Veteran's lumbosacral spine is ankylosed (fixed in one position) in an unfavorable position. The evidence documents significant restrictions in range of motion, but even when the VA examiner in December 2006, March 2007, and September 2008 indicated that the lumbar spine was markedly restricted to the point that movement in any direction caused severe back pain, there was no evidence of ankylosis in an unfavorable position. Further, it was the examiner's belief on those examinations that the Veteran exhibited marked symptom magnification and that the Veteran's displayed symptoms were grossly out of proportion to the physical findings. And when lumbar lordosis was found at the time of the April 2011 VA examination, when the Veteran presented with a stooped posture and gait abnormality, the examiner specifically found no thoracolumbar spine ankylosis. Assuming the "old" rating criteria for evaluating intervertebral disc syndrome is applicable, in order to satisfy the criteria for a 60 percent rating there must be pronounced intervertebral disc syndrome 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, little intermittent relief. 38 C.F.R. 4.71a, Diagnostic Code 5293. The medical records show some complaints of neurological symptoms into the right lower extremity in particular. Neurological evaluations on compensation examinations and outpatient records, as discussed above, show minimal, or at least no more than moderate, if any abnormalities. Sensory, motor, and reflex deficits were largely absent. The VA examiner in March 2007 and September 2008 opined that the Veteran's intervertebral disc disease was not productive of radiculopathy or radicular irritation. Decreased sensation in the right lower extremity was observed during VA outpatient visits in March 2003, June 2010, and July 2011, as well as during a VA compensation examination in April 2011, and a diagnosis of radiculopathy was made. Nevertheless, such findings were mostly characterized as slight in degree. In the view of the Board, the symptoms are not productive of a pronounced condition, as required by Diagnostic Code 5293 for a higher rating. Criteria effective on September 23, 2002 The criteria for rating limitation of motion of the lumbar spine and lumbosacral strain, as in effect prior to September 23, 2002, remained the same, despite other revisions to the rating criteria that were made effective on September 23, 2002. The criteria for rating intervertebral disc syndrome were revised, effective on September 23, 2002. Under the revised criteria, intervertebral disc syndrome is to be rated based either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 the separate ratings for chronic orthopedic and neurologic manifestations, whichever method results in the higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002). For purposes of a rating under Diagnostic Code 5293, 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. " Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. In regard to peripheral nerve injuries, the rating schedule provides for evaluations extending from 0 percent up to 20 percent for mild incomplete paralysis, from 10 percent up to 40 percent for moderate incomplete paralysis, and from 20 percent to 70 percent, all depending on the particular nerve or nerve group affected. See 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8719. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. 38 C.F.R. § 4.124a. With respect to the revised rating criteria, the medical records do not show that a physician has prescribed the Veteran bed rest for his low back disability at any time since the effective date of the revised criteria. At the time of the December 2006 VA examination, the Veteran reported 10 to 12 incapacitating episodes over the year, but as he also indicated that he did not see a physician during any episode it is not shown that he had incapacitating episodes as defined by VA, that is, bed rest prescribed by a physician and treatment by a physician, for the requisite period in order to meet the criteria for a higher rating under the revised Diagnostic Code 5293. Further, his report of flare-ups of back pain every two to three weeks at the time of the April 2011 VA examination was also accompanied by a statement that there were no incapacitating episodes of spine disability. And VA outpatient records do not demonstrate incapacitating episodes as defined by VA in order to meet the criteria for a higher rating under the revised Diagnostic Code 5293. Additionally, a higher rating would not result after combining the separate evaluations of the chronic orthopedic and neurologic manifestations of the Veteran's degenerative disease of the lumbosacral spine. His chronic orthopedic manifestations are no more than 40 percent disabling under Diagnostic Codes 5292, 5003, and 5010, as previously discussed. In regard to chronic neurologic manifestations of the degenerative disease of the lower spine, it cannot be said that there are such manifestations present constantly, or nearly so, assuming that the Veteran manifests some neurologic deficit attributable to his service-connected lumbosacral strain. The medical records generally show that the Veteran had chronic lower back pain with occasional spasm. The pain localized in the lower back has been considered in evaluating the orthopedic manifestations. As for neurological manifestations, as noted earlier, the VA medical evidence appears to show that there were mostly minimal or slight, but not more than moderate, neurological symptoms in the right lower extremity in particular. These symptoms were not found consistently over time, rather were observed intermittently such as in March 2003, June 2010, and April 2011 and July 2011. The VA examiner in December 2006, March 2007, and September 2008 stated that there was no evidence of radiculopathy or radicular irritation related to the intervertebral disc disease of the lumbosacral spine. Therefore, there is no basis for the assignment of a separate rating for neurologic manifestations resulting from intervertebral disc syndrome that are present constantly, or nearly so, under applicable evaluation criteria. Consequently, a rating higher than 40 percent is not in order under the revised version of Diagnostic Code 5293, effective on September 23, 2002. Criteria effective on September 26, 2003 The revised criteria effective on September 26, 2003 are for application 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. 38 C.F.R. § 4.71a, the General Rating Formula for Diseases and Injuries of the Spine. Effective September 26, 2003, the criteria for evaluating lumbosacral strain (Code 5237), degenerative arthritis of the spine (Code 5242), and intervertebral disc syndrome (Code 5243) were revised. Under such revisions, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243 (effective September 26, 2003). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The objective medical findings do not demonstrate that the Veteran's service-connected lumbosacral strain is manifested by unfavorable ankylosis of the entire thoracolumbar spine. Rather, as noted previously, the range of motion findings recorded at the time of the VA examinations and on outpatient visits showed severe limitation of motion, and it appears a nearly ankylosed spine as noted on VA examinations in 2006, 2007, and 2008. At no time was there documentation of unfavorable ankylosis of the entire thoracolumbar spine, even when the Veteran presented with a stooped posture and gait abnormality in April 2011. As for evaluating any associated objective neurologic abnormalities separately under an appropriate diagnostic code, as previously discussed above, the Board found that an assignment of a separate rating for the slight neurologic manifestations observed at times in the right lower extremity in particular was not in order. The neurologic manifestations were found not to be constant, or nearly so, as required by the regulations effective in September 2002. However, the regulations effective in September 2003 do not specify that such manifestations be constant. In any event, consideration of the observed neurologic abnormalities in the right lower extremity, as documented in the record in June 2010, April 2011, and July 2011, ultimately would not result in a rating higher than 40 percent for the lumbosacral strain, for the following reason. When separately evaluating the neurologic symptoms, shown in the Board's judgment to be minimal or slight but certainly not more than moderate, no more than a 20 percent rating for moderate incomplete paralysis under peripheral nerve injuries of the lower extremities is warranted. And during those periods (from September 2003, to which the current regulations apply) when neurologic symptoms are manifest and documented, the evaluation of the lumbosacral strain under the General Rating Formula for Diseases and Injuries of the Spine would produce no more than a 20 percent rating under Codes 5237, 5242, and 5243. That is, the evidence does not show that forward flexion of the thoracolumbar spine is 30 degrees or less, or that there is favorable ankylosis of the entire thoracolumbar spine. As previously noted, there is an absence of evidence of sensory deficit or motor deficit associated with lumbosacral strain on VA examinations in 2004, 2006, 2007, and 2008. However, in June 2010, April 2011, and July 2011, when radiculopathy was diagnosed and decreased sensation was observed in the right lower extremity, the range of motion of the lumbar spine is shown as follows: flexion is from 0 degrees to 32 degrees, extension is from 0 degrees to 12 degrees, left lateral flexion is from 0 degrees to 12 degrees, right lateral flexion is from 0 degrees to 10 degrees, left lateral rotation is from 0 degrees to 15 degrees, and right lateral rotation is from 0 degrees to 13 degrees. In other words, a separate rating of 20 percent for neurological manifestations, when combined with a 20 percent rating for evaluating lumbosacral strain under the General Rating Formula for Diseases and Injuries of the Spine, does not result in a rating higher than 40 percent. Effective September 26, 2003, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The former rating formula has been discussed in the preceding paragraphs. The latter formula consists essentially of that criteria for evaluating intervertebral disc syndrome that was revised effective on September 23, 2002, which has also been discussed in this decision herein above, although the criteria is now found in 38 C.F.R. § 4.71a , Diagnostic Code 5243 (effective September 26, 2003). As the Veteran's symptomatology of pain and limitation of motion of the lumbosacral spine, with no more than slight neurological symptoms, are specifically covered in the rating criteria for a 40 percent rating under the old rating criteria effective prior to September 23, 2002 and under the rating criteria revised effective in September 23, 2002 and September 26, 2003, the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. Additionally, the severe level of symptomatology associated with the Veteran's lumbosacral strain is contemplated by the current 40 percent rating; as noted above, the Veteran is in receipt of the highest schedular rating available for limitation of motion under both the old and new schedular criteria, and the criteria for a 40 percent rating under Code 5292 described severe limitation of motion. As discussed above, the rating schedule provides for higher ratings when additional manifestations, including unfavorable ankylosis and significant neurological deficits, are present, but such are not demonstrated in the Veteran's case. Therefore under the first step for extraschedular consideration comparing the symptomatology of lumbosacral strain with the established criteria, the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. As the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provided for a higher rating for additional or more severe symptoms, which have not been shown, and as the Veteran does not have any symptomatology not already encompassed by the Rating Schedule, the assigned schedular rating is adequate, and no referral for an extraschedular rating is required under 38 C.F.R. §3.321(b)(1). Effective Date of TDIU A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). An effective date of an award of an increase shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). Thus, when addressing the effective date for an award of increased compensation, a determination must be made when a claim for increased compensation was received and when a factually ascertainable increase in disability occurred. The Veteran contends that he is entitled to an earlier effective date for TDIU back to his claim for that benefit in April 1998. To establish entitlement to a TDIU, there must be service-connected impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the Veteran resides. Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, 1 Vet. App. at 358. The question is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Id., (citing 38 C.F.R. §§ 4.1 , 4.15). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). All cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a), are to be referred to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular evaluation. 38 C.F.R. § 4.16(b). The Board must therefore determine whether the Veteran is unemployable due to his service-connected disabilities. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Under Secretary Benefits or by the Director of the Compensation Service. An extraschedular rating is warranted upon a finding that the Veteran is unable to secure or follow substantially gainful employment. 38 C.F.R. § 4.16(b). The Veteran filed his claim for a TDIU in April 1998. The RO granted the benefit in a May 2010 rating decision, initially assigning an effective date of March 20, 2007. The Veteran disagreed with that effective date. In a December 2010 rating decision, the RO assigned an effective date of March 31, 2003 for the award of TDIU. This effective date was the first date the Veteran met the statutory threshold set forth in 38 C.F.R. § 4.16(a) for the grant of a TDIU. The Veteran's service connected disabilities are chronic lumbosacral strain, rated as 10 percent disabling from August 13, 1966, and as 40 percent disabling from April 25, 1995; depression, rated as 30 percent from March 31, 2003; and right ankle ligament tear, rated as zero percent disabling from August 13, 1966 and 20 percent disabling from August 10, 2000. His combined service connected disability ratings are 10 percent from August 13, 1966; 40 percent from April 25, 1995; 50 percent from August 10, 2000; and 70 percent from March 31, 2003. 38 C.F.R. § 4.25. As determined by the RO in its December 2010 rating decision, the Veteran's disabilities met the schedular requirements for TDIU as of March 31, 2003, as he had one disability rated at 40 percent or more and sufficient additional disabilities to raise his combined disability rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to March 31, 2003, the Veteran did not have a single service-connected disability rated at 60 percent or more, or two or more disabilities with at least one disability rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. As a result, entitlement to an extraschedular evaluation must be considered prior to that date. 38 C.F.R. § 4.16(b). For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Unemployability associated with intercurrent disability may not be used as a basis for a total disability rating on an extraschedular basis. 38 C.F.R. § 4.19. In a written statement received in September 1997 the Veteran reported that he had not worked since 1993 due to his back problems. On his VA Form 21-8940, application for TDIU, received in April 1998 the Veteran reported that he had last worked full time in November 1993. He reported having four years of high school education and no college. His last employment had been as a plant manager for a corporation. In a January 1999 statement the Veteran listed a number of jobs he had been unable to obtain due to physical limitations stemming from his back disability. In a written statement dated in August 2000, the Veteran reported that he had contacted the New York Department of Labor and was told that they did not know of any positions in the work force that he could be referred to. The Veteran stated that he had recently obtained a part-time job at his church, cleaning, dusting, and watering flowers approximately eight to 10 hours per week. A VA examination was conducted in April 2001. The Veteran reported that he had last worked full time in 1993 and now worked at the church in a temporary capacity. He complained of back stiffness and pain as well as right ankle stiffness. After examining the Veteran and reviewing the claims folder, it was the examiner's opinion that while the Veteran had "significant degenerative changes in his lumbar spine, that should not render him unable secure substantially gainful employment. The ankle condition should not prevent the Veteran from performing gainful employment. Certainly, however, he would not qualify for heavy duty type of occupation, but his past work history is that of a sedentary occupation and I see no reason why he would not be able to continue on with this type of activity." The Veteran completed another VA Form 21-8940 in April 2004. He reported that he had not worked in the past five years due to service connected disabilities of back, right ankle, and depression. The effective date of the award of service connection for depression is March 31, 2003, the date of the Veteran's claim for service connection for that disability. That is also, as noted above, the date that he met the schedular criteria for TDIU. Therefore, the question before the Board is whether the Veteran was unemployable prior to March 31, 2003 due to his service connected back and right ankle disabilities alone, as service connection for depression was not in effect prior to that date. There is no medical evidence of record to show that the Veteran's service-connected back and right ankle disabilities alone prevented him from following or obtaining substantially gainful employment prior to March 31, 2003. The April 2001 VA examiner, as noted above, opined that these disabilities would not render him unable to secure substantially gainful employment; the examiner specifically found that the Veteran should be able to perform sedentary employment consistent with his past work history. The Veteran has provided statements to the effect that he was unable to find full-time work after 1993. He also submitted a SSA earnings statement dated in September 2012 showing that he had no taxed Social Security earnings after 1993. As noted above, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. Rather, the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, supra. The Veteran is competent to discuss the impacts of his service-connected and non-service-connected disabilities. Layno v. Brown, 6 Vet. App. 465 (1994). To the extent that he believes his service-connected back and ankle disabilities rendered him unemployable prior to March 31, 2003, his statements are also credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In this regard the Board notes that the Veteran, in his April 2004 Form 21-8940, attributed his inability to work in the past five years to his back, ankle, and depression disabilities. In any event, his statements are less probative than the medical evidence finding that his back and ankle disabilities would not preclude substantially gainful employment. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, whether his service-connected back and right ankles disabilities alone prevented him from following or securing substantially gainful employment, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board finds that the preponderance of the evidence shows that the Veteran was not unable to secure or maintain substantially gainful employment due to his service-connected disabilities of lumbosacral strain and right ankle ligament tear alone prior to March 31, 2003. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. 5107(b) regarding reasonable doubt are not applicable, and his claim for an effective date earlier than March 31, 2003 for the grant of a TDIU must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER A rating higher than 40 percent for lumbosacral strain on an extraschedular basis is denied. An effective date prior to March 31, 2003, for the grant of a total disability rating for compensation based on individual unemployability, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs