Citation Nr: 1320880 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 08-35 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial evaluation higher than 20 percent prior to January 31, 2012, and an initial evaluation higher than 40 percent since January 31, 2012 for diabetes mellitus, Type II. 2. Entitlement to an initial evaluation higher than 10 percent prior to July 25, 2012, and an initial evaluation higher than 20 percent since July 25, 2012 for degenerative disc disease T12-L3. 3. Entitlement to a total disability rating on the basis of individual unemployability (TDIU) due to service connected disabilities, including on an extraschedular basis, before April 22, 2011. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1972, from December 20, 1990 to April 1991, and from May 1999 to October 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2007 of a Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Besides the issues of entitlement to a higher rating for diabetes mellitus and entitlement to a higher rating for degenerative disc disease of the lower back, the Veteran also expressed disagreement to the ratings assigned for a right shoulder disability and a right knee disability. After the RO issued a statement of the case in October 2008, the Veteran's substantive appeal was limited to the ratings assigned for diabetes and degenerative disc disease. Accordingly, the Veteran did not perfect an appeal on the issues concerning the ratings assigned to the right shoulder and right knee disabilities. 38 C.F.R. §§ 20.202, 20.302. During the pendency of the appeal, in a rating decision dated in May 2012, the RO increased the rating for diabetes mellitus from 20 percent to 40 percent, effective January 2012. In another rating decision dated in November 2012, the RO increased the rating for degenerative disc disease from10 percent to 20 percent, effective July 2012. The Veteran continued his appeal for a higher rating for both disabilities. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of total disability based upon individual unemployability due to service connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At all relevant times, diabetes mellitus required insulin, a restricted diet, and regulation of activities, but without evidence of ketoacidosis or hypeoglycemic reactions requiring hospitalizations or visits to a diabetes management provider two or more times a month. 2. Prior to July 25, 2012, degenerative disc disease T12-L3 is manifested by flexion to 90 degrees, and the combined range of motion was 240 degrees and there were no incapacitating episodes involving bed rest prescribed by a physician. 3. From July 25, 2012, the disability picture of the Veteran's degenerative disc disease T12-L3 more nearly approximated 30 degrees of forward flexion or favorable ankylosis of the thoracolumbar spine CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher for diabetes mellitus have been met for the entire claim period. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). 2. Before July 25, 2012, the criteria for a rating higher than 10 percent for degenerative disc disease T12-L3 have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2012). 3. From July 25, 2012, the criteria for a rating of 40 percent, but no higher for degenerative disc disease T12-L3 spine have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is 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, 484-86 (2006). In a claim for increase, the VCAA notice requirements are 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 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, 119 (2004). The RO provided pre- adjudication VCAA notice as evidenced by an acknowledgment signed by the Veteran shortly before separation, dated in July 2006. The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (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, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. Where, as here, service connection has been granted and the initial disability rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating for either diabetes mellitus or degenerative disc disease. Dingess, 19 Vet. App. 473, 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). 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 the claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, records from the Social Security Administration, and afforded the Veteran VA examinations in February 2007, January 2012, and July 2012. The reports of the VA examinations included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, 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. Rating Principles A disability rating is determined by the application of VA's 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. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Increased Rating for Diabetes Mellitus Diabetes mellitus is rated under Diagnostic Code 7913 of 38 C.F.R. § 4.119. Under Diagnostic Code 7913, a 20 percent rating is awarded where the disorder requires insulin and a restricted diet, or requires an oral hypoglycemic agent and a restricted diet. The criteria for the next higher rating, 40 percent, for diabetes mellitus are insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted where the disorder requires insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted where the disorder requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Competent medical evidence is required to establish "regulation of activities," namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating or higher under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating, each criteria listed in a rating must be met or more closely approximated in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a Veteran can only be rated at the level that did not require the missing component. Id. Under Note 1 to 38 C.F.R. § 4.119, Diagnostic Code 7913, compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent evaluation. In this regard, the RO has already separately rated the complications of diabetes mellitus, namely, coronary artery disease, associated with diabetes mellitus, currently rated at 100 percent; and erectile dysfunction, for which the Veteran is receiving special monthly compensation. The Veteran was provided a VA examination in February 2007. Diabetes was detected after the Veteran served in Desert Shield. He has erectile dysfunction. He voids about four times during the day and three times at night. There is no urinary incontinence. There have been no episodes of diabetic ketoacidosis, or hypoglycemia requiring hospitalization. He sees a physician every six months. The Veteran reported tingling and numbness although from the report it is not clear where in his body these symptoms occurred. The Veteran believed diabetes affected the eyes as he trouble reading in distance and uses glasses. The Veteran's diabetes is treated with diet control and oral medication. There was no skin condition or heart condition due to diabetes mellitus. He takes medication to control his blood pressure. He experiences leg pain on walking a distance of 300 yards, causing calf pain and a cold sensation of the extremities. Diabetes has not affected the kidneys. The physical examination revealed normal skin and eyes. The neurological examination was normal in sensation and motor function. All reflexes were 1 +. The diagnosis was diabetes mellitus, type II complicated by impotency. There was no peripheral neuropathy. The examiner stated that the Veteran was restricted in activities due to diabetes. He had been avoiding strenuous activities to prevent hypoglycemic reaction. The Veteran had hypertension which was aggravated by diabetes. The Board also notes that the hypertension disability has been service connected as a direct result of service. No diagnosis was reached regarding his urinary incontinence symptoms. In a letter dated in July 2008, the Veteran's private diabetic care provider noted more office visits by the Veteran were recommended, but there was no indication how often the Veteran currently visited or should visit in the future. The Veteran had been using oral medications but switched to insulin due to renal insufficiency and failure of treatment. In November 2009, an EMG/NCS was normal. The report specifically stated there was no evidence of peripheral polyneuropathy and noted that the Veteran had been diagnosed with diabetes mellitus. In April 2010, an EMG showed moderately denervating left L5 radiculopathy and evidence of mild S1 radiculopathy In December 2010, the Veteran had an EMG with findings consistent with left L5 radiculopathy. There was no evidence of right lower extremity radiculopathy and no evidence of generalized sensory or motor peripheral polyneuropathy in the Veteran, again noting he was a diabetic. The Veteran was provided a second VA examination in January 2012. He takes insulin more than once a day and must regulate his activities because he cannot perform strenuous activities. He sees his diabetic care provider less than twice a month. There have not been any hospitalizations for ketoacidosis or hypoglycemia. He has not had any progressive loss of strength attributable to diabetes mellitus. The examiner diagnosed diabetic peripheral neuropathy and coronary artery disease as complications of diabetes mellitus in the Veteran. There was no diabetic retinopathy, diabetic nephropathy, or renal dysfunction caused by diabetes mellitus. There was no attribution of hypertension (in the presence of renal dysfunction), stroke, peripheral vascular disease, eye conditions, or skin conditions at least as likely as not due to diabetes mellitus. As noted, the examiner diagnosed diabetic peripheral neuropathy in the lower extremities bilaterally. The examiner stated the Veteran had mild pain, paresthesias and/or dyesthesias, and numbness in the lower extremities. Except for decrease sensation in the feet and toes, the neurological examination was normal. In addendum dated in August 2012, the examiner learned that a November 2009 EMG was normal and a subsequent test in December 2010 demonstrated left lower extremity radiculopathy from degenerative disc disease, but there was no evidence of any right lower extremity radiculopathy or polyneuropathy. The examiner changed his opinion and attributed the cause of the Veteran's peripheral neuropathy from diabetes mellitus to his degenerative disc disease of the lower back. After careful review of the record, the Board finds that the Veteran meets the criteria for a 40 percent rating under Diagnostic Code 7913 at all relevant times. The Veteran is on insulin, a restricted diet, and both VA examinations stated the Veteran must regulate his activities to avoid hypoglycemic reactions. Thus, the evidence demonstrates that the Veteran avoids strenuous occupational and recreational activities to manage his diabetes. See Camacho, supra (Veteran restricted in activities for safety of others and not to help control his diabetes symptoms not entitled to 40 percent rating). Therefore the Veteran meets the criteria for a 40 percent rating, but no higher, for diabetes mellitus under 38 C.F.R. § 4.119, Diagnostic Code 7913. In the absence of episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, twice a month visits to a diabetic care provider, or noncompensable diabetic complications, the criteria for the next higher rating have not been met at any time during the relevant rating period. The Board has also considered the Veteran's lay statements that his disabilities are worse than currently evaluated. For instance, he states he must be around people who know what to do if his blood sugar levels become too low. In evaluating a claim for an increased schedular disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. That involves specialized knowledge or training in the management, identifying of diseases and complications related to diabetes mellitus. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Such competent evidence concerning the nature and extent of the Veteran's diabetes mellitus disability have been provided by the medical personnel who have examined him during the current appeal period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. It is true the Veteran has developed additional residuals of diabetes such as coronary artery disease, and erectile dysfunction. However, in this case, erectile dysfunction and the neurologic and cardiac manifestations of the service-connected diabetes are already rated separately, and to include those manifestations again as a direct manifestation of diabetes would violate the rule against pyramiding. See 38 C.F.R. § 4.14. The cardiac disability is rated at 100 percent. The Veteran receives special monthly compensation for loss of use of a creative organ, that is, loss of erectile power. Under Diagnostic Code 7522, the criteria for a compensable rating, 20 percent, are penile deformity with loss of erectile power. As there is no evidence that establishes penile deformity, the criterion for a 20 percent rating under Diagnostic Code 7522 has not been met. Finally, other symptoms and conditions that could be a result of diabetes, such as peripheral arterial disease or diabetic retinopathy have not been diagnosed. For the reasons explained above, the criteria for a 40 percent rating under Diagnostic Code 7913 have been demonstrated throughout the rating period considered in this appeal, the preponderance of the evidence is against a rating higher than 40 percent, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Increased Rating for Degenerative Disc Disease, T12-L3 Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Also with any form of arthritis, painful motion is factor to be considered. 38 C.F.R. § 4.59. Degenerative disc disease of the lumbosacral spine is rated under the General Formula for Diseases and Injuries of the Spine (General Formula), Diagnostic Code 5242, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Intervertebral Disc Syndrome), Diagnostic Code 5243, whichever method results in the higher rating. Under the General Formula, in evaluating disabilities of the spine, the criteria is 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. Under the General Formula, the criteria for a 20 percent rating are forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria for a 40 percent rating are forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned for unfavorable ankylosis of the entire thoracolumbar spine. Also any objective neurological abnormality may be separately rated under the appropriate Diagnostic Code. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 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. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for a 20 percent rating are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The criteria for the rating of 40 percent are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The criteria for a rating of 60 percent are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician. The Veteran was provided a VA examination in February 2007. The Veteran reported he could not move or straighten up. He had pain, stiffness, and weakness. The pain was in the low back all day constantly and traveled to the hips, legs, and back. The pain was crushing, aching, squeezing, cramping, sharp, and burning, 10/10 pain. Physical activity worsened the pain and rest and medication alleviated the pain. He can function without medication and can straighten up and bend side to side with pain in the low back and legs. Nevertheless, his functional impairment prevented him from bending at the waist much; he cannot twist or pick up heavy items. The Veteran had a normal gait and did not use any assistive devices. Muscle spasms and paraspinal muscle tenderness at L4 was present. The straight leg test was negative. His forward flexion was 90 degrees. Extension was 30 degrees. Lateral flexion bilaterally was to 30 degrees and rotational flexion was 30 degrees bilaterally. After repetitive use, there was no pain, fatigue, weakness, lack of endurance, or incoordination or additional limitation. The neurological examination was normal in sensation and motor function. All reflexes were 1 + and the examiner stated there was no abnormal reflexes. X-rays revealed mild degenerative disc disease with bridging osteophytes. The examiner diagnosed degenerative disc disease of T12-L1, L1-L2, and L2-L3 with pain. In September 2008, the private physician treating the Veteran for his back disability, Dr. A. Tohmeh, noted it was mostly the back that caused the Veteran problems as opposed to the lower extremities. X-rays demonstrated diffuse spondylothelisis through the lumbar spine with bridging osteophytes anteriorly above L2. He also had anterior osteophyte formations at L2-L3, L3-L4, and L4-L5. One X-ray demonstrated a symmetrical disc space at L4 with a collapse mostly on the right. An MRI revealed moderate stenosis at L2-L3 with multilevel degenerative disc disease throughout the lumbar spine In October 2008, a bone scan indicated an increased uptake at L2-L3 very clearly delineated and significant compared to other levels. In November 2009, an EMG/NCS was normal without evidence of acute or chronic denervation potential of any left lower extremity myotomes. There was a reduced left peritoneal motor amplification and a suggestion of a mild neuropraxia on the L5 nerve root, but no definite condition. The report specifically stated there was no evidence of peripheral polyneuropathy and noted that the Veteran had been diagnosed with diabetes mellitus. The Veteran also underwent surgery on his lower back that same month for a PEEK interbody device, a bone graft, and lateral plating. For a while, the Veteran appeared to do well following this surgery, but eventually, he had increased pain in the low back and down his left leg in the L5 dermatome. In February 2010, the Veteran underwent a second surgery consisting of an L5-S1 microdiscectomy and L5 nerve root forminectomy and decompression. In April 2010, an EMG showed moderately denervating left L5 radiculopathy an evidence of mild S1 radiculopathy. In December 2010, the Veteran complained of left leg pain and his big toe was numb. Sometimes the pain was so bad, he could not put weight on the left leg. He had an EMG with findings consistent with left L5 radiculopathy. There was mild denervation potential present both in both the proximal and the distal portion of the L5 dermatome. The evaluator described these findings as mild. There was no evidence of right lower extremity radiculopathy and no evidence of generalized sensory or motor peripheral polyneuropathy in the Veteran as a diabetic. The Board notes that the Veteran received temporary total disability for convalescence following surgery from February 22, 2010 to March 21, 2010. After a review of the foregoing evidence, and excluding the period of convalescence, the Board has determined that a rating higher than 10 percent is not warranted before July 25, 2012 for the Veteran's disability of degenerative disc disease, T12-L3. The VA examination in February 2007 did not demonstrate limitation in the range of motion for forward flexion 60 degrees or less or the combined range of motion was 120 degrees or less. Although muscle spasms were noted, there was no abnormal gait or spinal contour. There was no evidence of ankylosis. Stated another way, on the basis of the schedular criteria, the disability would not warrant the next higher rating of 20 percent, nor do the findings more nearly approximate a disability picture warranting a 20 percent rating. In addition, a review of the record shows that there is no evidence of incapacitating episodes prescribed by a physician and treatment by a physician for any duration. To the extent the Veteran has offered his own opinion that his degenerative disc disease disability warrants a higher rating before July 25, 2012, for the same reasons the Board found the medical records more probative than the Veteran's subjective complaints of increased symptomatology of diabetes also applies in its evaluation of the rating for the degenerative disc disease. The Veteran does not have demonstrated medical knowledge and the medical findings (as provided in the examination reports and the clinical records) to directly address the criteria under which this disability is evaluated. The Board has therefore placed more probative value in the medical records then the Veteran's subjective complaints of increased symptomatology or opinions concerning the degenerative disc disease disability. As for rating the associated neurologic objective abnormalities, in this case, peripheral neuropathy of the left lower extremity, the Veteran has a separate rating for that disability and the separate rating for peripheral neuropathy of the left lower extremity is not before the Board. There are no other objective neurological abnormalities apart from peripheral neuropathy of the left lower extremity. For the reasons explained above, the Veteran meets the criteria for a 10 percent rating for degenerative disc disease, T12-L3 but the preponderance of the evidence is against a rating greater than 10 percent prior to July 25, 2012, and the benefit of the doubt rule does not apply for a rating higher than 10 percent prior to July 25, 2012. 38 U.S.C.A. § 5107(b). The Veteran was provided a VA examination on July 25, 2012. The Veteran reported flare-ups made it difficult to move. The Veteran had a normal gait and posture. He had forward flexion of 60 degrees, which is when he experienced pain. Extension was to 10 degrees with pain at 10 degrees. Right lateral flexion was 20 degrees and left lateral flexion was 20 degrees, both with pain at 20 degrees. Right rotational flexion was 20 degrees and left rotational flexion was 20 degrees, both with pain at 20 degrees. The Veteran, however, was not able to perform repetitive testing due to pain in the low back with range of motion. The examiner described the functional loss or impairment as less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing. The functional impact on work prevented the Veteran from prolonged standing or sitting. He could not perform prolonged lifting, twisting of the back, or running. Physical examination did not reveal any tenderness, guarding, or muscle spasm. Muscle strength in the lower extremities was normal and there was no muscle atrophy. Reflexes were normal. The sensory examination was also normal. The straight leg test was negative. The examiner stated the Veteran did not have any radicular pain or any signs or symptoms due to radiculopathy. There were no other neurologic abnormalities and the Veteran did not have intervertebral disc syndrome. The diagnosis was degenerative disc disease of the lumbar spine, status post lumbar spine at L5-S1 and status post lumbar discectomy at L2-L3. In the VA examination in July 2012, forward flexion was to 60 degrees with pain. At first glance, as 60 degrees of flexion does not more nearly approximate 30 degrees, the criteria for the next higher rating based on limitation of motion, 40 percent, have not been met. Alternatively, in the absence of favorable ankylosis of the entire thoracolumbar, the criteria for the next higher rating have not been met. The Board, however, must consider functional loss due to pain, weakness, fatigue, incoordination, or lack of endurance, flare-ups, or painful movement under 38 C.F.R. §§ 4.40, 4.45, 4.59; See also, DeLuca, supra. The Veteran in July 2012 could not perform repetitive testing due to pain and therefore demonstrated a functional loss greater than the one time ability of forward flexion to 60 degrees. Stated another way, there was an additional loss of motion with repetitive testing, to the point of none. As a practical matter, the Veteran does not have much, if any, movement of the thoracolumbar spine. Resolving all doubt in favor of the Veteran, the Board finds that this functional loss of the Veteran's degenerative disc disability more nearly approximates the disability picture approximating forward flexion less than 30 degrees or favorable ankylosis of the thoracolumbar spine to warrant 40 percent. To the extent the Veteran argues his disability picture more nearly approximates the criteria for a 50 percent rating because of the limited range of motion, although there was additional loss of range of motion with repetitive movements, the changes did not more nearly approximate or equate unfavorable ankylosis of the entire thoracolumbar spine as there is no evidence of 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. In the absence of at least one of the foregoing signs or symptoms of unfavorable ankylosis of the thoracolumbar spine on VA examinations or in any other medical evidence of record, the disability picture does not more nearly approximate or equate to unfavorable ankylosis, the criteria for the next higher rating under the General Rating Formula for Diseases and Injuries of the Spine based on orthopedic manifestations. 38 C.F.R. § 4.7. The Board also finds that there is no additional disability due to functional loss due to pain under 38 C.F.R. § 4.40 or additional disability due to functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 that would more nearly approximate the disability picture of unfavorable ankylosis. There is no objective evidence to demonstrate that pain on use or during flare ups results in additional functional limitation to the extent that under Diagnostic Code 5242 unfavorable ankylosis of the thoracolumbar spine is shown. 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). As already noted, painful motion was taken into account on the range of motion studies as noted on the VA examination in July 2012. As for rating the associated neurologic objective abnormalities, in this case, peripheral neuropathy of the left lower extremity, the Veteran has a separate rating for that disability and the separate rating for peripheral neuropathy of the left lower extremity is not before the Board. There are no other objective neurological abnormalities apart from peripheral neuropathy of the left lower extremity. Also, in the absence any evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, the criteria for the next higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met. As the preponderance of the evidence is against a rating higher than 40 percent for degenerative disc disease of the lumbosacral spine since July 25, 2012, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that 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 contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there is a higher rating available for diabetes mellitus under Diagnostic Code 7913 addressed in this decision. However, the Veteran's disability is not productive of the manifestations that would warrant the higher rating. The discussion above reflects that the symptoms of the Veteran's diabetes are fully contemplated by the applicable rating criteria. The Veteran's rating reflects that he requires insulin, oral medication, a restricted diet, and regulation of activities but does not still suffer residuals that require hospitalizations or more frequent monitoring by a health care provider, which is required before receiving the next higher rating. The Board has determined that such impairment of functioning is already encompassed in the ratings criteria by the schedular criteria and he has received service connection for compensable complications of diabetes mellitus such as coronary artery disease. In a similar manner, as to the degenerative disc disease, there is a higher rating available under Diagnostic Code s 5242 and 5242, but the degenerative disc disease does not demonstrate a disability picture that warrants a higher rating and he has received service connection for compensable complications due to degenerative disc disease such as peripheral neuropathy of the left lower extremity. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule for either disability under review. Comparing the Veteran's current disability levels and symptomatology to the Rating Schedule, the degree of disability for each disability is contemplated by the Rating Schedule and the assigned schedule rating for each disability is, therefore, adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial rating of 40 percent for diabetes mellitus, Type II is granted, subject to the law and regulations, governing the payment of monetary benefits. Entitlement to an initial rating higher than 10 percent before July 25, 2012 for degenerative disc disease, T12-L3 from July 25, 2012 is denied. Entitlement to a rating of 40 percent for degenerative disc disease, T12-L3 from July 25, 2012 is granted, subject to the law and regulations, governing the payment of monetary benefits. REMAND The Court of Appeals for Veterans Claims (the Court) held that entitlement to a total compensation rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran was granted a 100 percent rating for Coronary Artery Disease in a rating decision dated in May 2013, effective April 22, 2011. In addition, the Veteran was awarded special monthly compensation based on being housebound. See 38 U.S.C.A. § 1114 (s). A TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). Since VA has granted a 100 percent schedular rating for his service-connected coronary artery disease and special monthly compensation, the Veteran is not eligible for a total rating for compensation based on individual unemployability for any period on appeal after the effective date for the 100 percent rating for coronary artery disease, which is April 22, 2011. See Green v. West, 11 Vet. App. 472, 476 (1998), see also Bradley v. Peake, 22 Vet. App. 280 (2008). Accordingly, the Board has styled the issue of TDIU as set forth on the first page of this decision. It does not appear that the RO considered whether the Veteran was entitled to TDIU as part and parcel of the Veteran's claims for an increased evaluation for service-connected diabetes mellitus and/or degenerative disc disease as directed by the Court in Rice. The Board finds that the record reasonably raises TDIU and is part of an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating for diabetes mellitus and degenerative disc disease. The Veteran has contended, and submitted evidence that the diabetes disability (rated at 40 percent), or the degenerative disc disease disability (10 percent), is so severe, that he is no longer capable of work before April 22, 2011. In addition, the Veteran before April 22, 2011, was also service connected for a right knee replacement (30 percent), tinnitus (10 percent), bilateral hearing loss (0 percent), hypothyroidism (10 percent), left lower extremity radiculopathy associated with degenerative disc disease (10 percent), hypertension (10 percent), degenerative disease of the AC joint of the right shoulder (0 percent), and restless leg syndrome (0 percent). The total combined rating before April 1, 2010 was 60 percent and, after service connection became effective for left lower extremity peripheral neuropathy, 70 percent from April 1, 2010 to April 22, 2011. A remand is required as the record reasonably raises the question of TDIU entitlement, but lacks the appropriate development, including notice and assistance under the VCAA and an opinion as to whether the Veteran's service-connected disabilities of diabetes mellitus, degenerative disc disease, and any other disabilities that are service connected, but not in conjunction with his nonservice-connected disabilities, makes him unemployable for VA purposes. This development includes an opinion as to whether the disabilities that are service connected if warranted after the foregoing development, but not in conjunction with his nonservice-connected disabilities, makes him unemployable for VA purposes. Further, as to the claim for total disability based upon individual unemployability, a total disability rating for compensation on the basis of TDIU may be assigned when service connection is in effect for one disability rated as 60 percent or more, or two or more service-connected disabilities with at least one rated as 40 percent or more such that there is a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a) (2011). The Veteran's total combined rating before April 1, 2010 did not meet the percentage requirements for TDIU under 38 C.F.R. § 4.16(a). VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b) (2011). While the Board does not have authority to grant an extraschedular rating for TDIU in the first instance, it 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. 38 C.F.R. § 3.321(b)(1). The Board has determined that the RO should develop and adjudicate whether the Veteran is entitled to a TDIU based on an extraschedular basis before April 1, 2010, and based on the schedular criteria between April 1, 2010 and April 2011, a schedular basis. Accordingly, the case is REMANDED for the following action: 1. Provide VCAA notice to the Veteran on the claim of total disability based upon individual unemployability and assist the Veteran with respect to the claim for TDIU on both a schedular and extraschedular basis pursuant to 38 C.F.R. § 4.16 (a) & (b). 2. The Veteran should be provided a VA evaluation by a vocational specialist to ascertain whether he was unable to secure or follow a substantially gainful occupation due to the combined effects of all of his service-connected disabilities before April 22, 2011. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. A complete rationale for all opinions should be provided. The examiner is asked to assess the Veteran's ability to secure or follow a substantially gainful occupation solely on the basis of his service-connected disabilities and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service connected disabilities prevent him from securing or following a substantially gainful occupation, consistent with his education and occupational experience before April 22, 2011. When offering the opinion, the examiner is instructed to ignore the effects of age or any non-service connected disabilities. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). 3. If the evidence from the examination, or other evidence, demonstrates that the Veteran was unemployable due to service-connected disabilities before April 1, 2010, then refer the claim to the Director of Compensation for consideration of an extra-schedular rating. 4. After the foregoing development is completed, adjudicate the claim of entitlement to TDIU. If the decision remains adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs