Citation Nr: 1321306 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 06-28 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent prior to March 30, 2010 for degenerative disc disease of the lumbosacral spine with mechanical low back pain. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1956 to December 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005 and April 2012 decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. In July 2009, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO. A written transcript of this hearing has been added to the claims file. A review of the Virtual VA paperless claims processing system (Virtual VA) reflects that it contains recent VA records and other documents not found within the physical claims folder. These documents have been noted and reviewed by the Board. During the course of this appeal, the Veteran has been assigned an increased rating of 40 percent effective March 30, 2010 for his lumbosacral spine disability. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased disability rating remains in appellate status. In a prior December 2010 decision, the Board addressed the matter of entitlement to an evaluation in excess of 40 percent for the Veteran's service-connected low back disability effective March 30, 2010, and this issue is not before the Board. In this same decision, the Board also denied a disability rating in excess of 20 percent prior to March 30, 2010. This determination was appealed to the U.S. Court of Appeals for Veterans Claims (Court). In September 2011, the Court issued an order granting a Joint Motion for Remand (Joint Motion) which vacated the Board's denial of a disability rating in excess of 20 percent prior to March 30, 2010 for the Veteran's service-connected low back disability, and remanded that issue to the Board for further adjudication. This appeal was previously remanded by the Board on several occasions, most recently in August 2012. On that occasion, the Board requested the agency of original jurisdiction (AOJ) obtain additional VA treatment records and Social Security Administration (SSA) records. Pursuant to the Board's remand order, the AOJ obtained additional VA treatment records. The AOJ also attempted to obtain SSA records, but no such records were available, as will be discussed in greater detail below. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to March 30, 2010, the Veteran's service-connected degenerative disc disease of the lumbar spine with mechanical low back pain was manifested by forward flexion of the thoracolumbar spine that was greater than 30 degrees and less than 60 degrees. Incapacitating episodes and ankylosis have not been shown. 2. Service connection has been awarded for degenerative disc disease of the lumbosacral spine, with mechanical low back pain, with a 40 percent evaluation; and for peripheral neuropathy of the right lower extremity, with a 20 percent evaluation. His combined rating is 50 percent. 3. The Veteran's service-connected disabilities have not rendered him unable to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 20 percent before March 30, 2010 for the Veteran's degenerative disc disease of the lumbar spine with mechanical low back pain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5235-43 (2012). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In December 2004, May 2005, October 2009, December 2010, August 2012, and January 2013 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the October 2009 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued in December 2004, for the low back claim, and December 2010, for the TDIU claim, prior to the adverse determinations on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. VA has attempted to obtain Social Security Administration records associated with a Veteran's claim for Social Security Disability benefits. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The Social Security Administration has stated, however, that the Veteran's records held by that agency have been destroyed. Thus, VA has no further obligations in that regard, as such records are no longer available, and the Veteran was personally contacted in September 2012 by the agency of original jurisdiction (AOJ) and informed of the absence of these records. He responded that he possessed no copies of these records as well. The Veteran has also been afforded VA medical examinations in August 2005, August 2007, March 2010, April 2011, and December 2011. Additionally, the Veteran was scheduled for another VA examination in January 2013, but did not appear and has not, to date, provided a reason for his absence. "[T]he duty to assist is not always a one-way street. If [an appellant] wishes help, he cannot passively wait for it in those circumstances [where his input is crucial for obtaining that assistance]." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran has did not report to his most recent VA examination and did not provide an explanation for his absence, VA has not further obligations in this regard. The Board notes that the VA and private medical evidence of record contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. In July 2009, the Veteran was afforded the opportunity to testify in person before a Veterans Law Judge. The Court has held that pursuant to 38 C.F.R. § 3.103, a VA official conducting a hearing must provide notice of the issues in the case and the evidence that is referenced in the testimony that has not been submitted. Bryant v. Shinseki, 23 Vet. App. 488, 492-96 (2010). During the hearing in the present case, the Veterans Law Judge clarified the issues on appeal and asked about the possibility of additional or forgotten records. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. Increased Rating for a Lumbosacral Spine Disability The Veteran seeks an increased rating prior to March 30, 2010, for his service-connected degenerative disc disease of the lumbosacral spine. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 C.F.R. § 4.1 (2012). In addition, where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As with any increased rating claim, the Board must contemplate staged ratings, in excess of those already granted, where warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, the Board must also consider whether a higher rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where, however, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Degenerative disc disease and other disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides the following: 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 Unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). Spinal disabilities may also be evaluated under the criteria for intervertebral disc syndrome, if applicable. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warranted a 60 percent rating. With incapacitating episodes having a total duration of at least 4 weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note 1 (2012). For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71, Plate V (2010). A July 2005 magnetic resonance imaging (MRI) study of the lumbar spine indicated mild degenerative disc disease and facet disease at L5-S1 which caused a mild bilateral lateral recess stenosis and a mild canal stenosis, mild flattening of the thecal sac at L4-5 and L3-4 without obvious nerve root compression, and scattered areas of bony edema. On examination in August 2005, the Veteran indicated that household chores requiring standing, walking, and lifting exacerbated his low back pain. He reported a constant dull pain in the low back region. The Veteran denied incapacitating episodes requiring bed rest or hospitalization in the previous year. Thoracolumbar forward flexion was from zero to 50 degrees. While wearing his lumbosacral corset, however, forward flexion was from zero to 30 degrees. Side bending was from zero to 30 degrees bilaterally both with and without the corset. Rotation was from zero to 20 degrees bilaterally. Extension was from zero to 10 degrees. An X-ray study revealed multilevel degenerative disc disease. The examiner diagnosed lumbar degenerative disc disease without radiculopathy along with moderate mechanical low back pain secondary to the foregoing. The examiner commented that the Veteran's low back disability caused difficulty standing for long periods, walking long distances, and repetitive bending, stooping, or lifting. A January 2006 X-ray study of the lumbar spine revealed moderate degenerative disc disease in the lumbar spine with a mild dextroscoliosis and no acute findings. On VA examination in August 2007, the Veteran indicated that household chores requiring standing, walking, bending, and lifting increased his low back and right buttock pain. The Veteran complained of a constant sharp and dull pain in the low back that worsened with prolonged standing, walking long distances, bending, stooping, and lifting. The Veteran denied episodes of incapacitating back pain that required bed rest or hospitalization in the previous 12 months. The Veteran ambulated without the aid of a cane or other orthopedic assistive device. The Veteran had no functional limitation on standing or walking while entering the clinic. Objectively, there was moderate paraspinal muscle spasm from L3 to S1 with pain on palpation of the L5-S1 interspace right sciatic notch. Combined thoracolumbar forward flexion was from zero to 50 degrees. Side bending was from zero to 30 degrees bilaterally. Rotation was from zero to 20 degrees bilaterally. Extension was from zero to 10 degrees. The Veteran complained of pain throughout his forward flexion range of motion testing. An X-ray study showed severe multilevel lumbar degenerative disc disease. The examiner diagnosed lumbar degenerative disc disease with mild right lower extremity radiculopathy as well as moderate low back pain secondary to the foregoing. The Veteran underwent three consecutive range of motion exercises without an increase in spasticity, long support flexion, side flexion, or rotation dynamics. Gait was normal. The examiner noted that the Veteran's low back disability was of the sort that would cause difficulty standing for protracted periods, walking long distances, bending, stooping, and lifting. The Veteran was a "limited community ambulator" without the aid of an orthopedic assistive device but this was secondary to the Veteran's vascular claudication and not the result of lumbar disc disease, radiculopathy, or mechanical low back pain, according to the examiner. An October 2007 MRI of the lumbosacral spine showed disc bulges at nearly every level, mild stenosis at L3-4 and L4-5, and worse vertebral body edema at L4-5 and improved vertebral body edema at L2-3. In a November 2007 written statement, the Veteran indicated that he sometimes had to use a heating pad all day to relieve low back pain. He also stated that he took naps every afternoon. He could not drive more than 20 minutes at a time due to left leg numbness. He stated, however, that he cleaned his own apartment and washed and ironed his clothes. At times, low back pain was so severe that he would scream. In a July 2008 statement, a private physician confirmed that when flying or walking long distances was required, the Veteran was compelled to use a wheel chair due to significant pain. At his July 2009 hearing, the Veteran testified that he used an electric bed and had to lift his leg over the side of the bed. He could not sleep if he did not take pain medication. He indicated that he could walk only a block before having to sit, and he spoke of the need for a wheel chair at airports. The Veteran stated that he received injections for pain control approximately once a month. According to him, when low back pain was severe, he got into bed and placed a heating pad under his back for 60 to 90 minutes. This occurred about three times a week. The Veteran could not drive long distances. He did not need help driving or running errands. Indeed, he testified that he walked to places such as the grocery store. He did not use a brace or similar device because he indicated that they did not help. The outpatient treatment records reflect that the Veteran has pursued various treatment for low back pain to include injections. In March 2010, the Veteran underwent a VA orthopedic examination. The Veteran reported some unsteadiness, decreased low back motion, stiffness, weakness, spasms, and pain. He denied fatigue. The Veteran described constant sharp pain that was worse with bending and stooping or lifting. The pain was daily and it radiated into the left lower extremity. The Veteran reported flare-ups that lasted one or two days a week. These were precipitated by bending and lifting. Bed rest and analgesics relieved the pain. There were no incapacitating episodes. The Veteran denied using assistive devices. He was unable, however, to walk more than a few yards. The Veteran's gait was abnormal. Posture, however, was within normal limits. There was no abnormal spinal curvature. The examiner observed guarding, spasm, pain with motion, tenderness, and weakness. Flexion of the thoracolumbar spine was from zero to 20 degrees. Extension was zero degrees. Lateral flexion was from zero to 10 degrees bilaterally, and lateral rotation was from zero to 10 degrees bilaterally. There was evidence of pain following repetitive motion but no other limitations with repetitive motion. An X-ray study of the low back revealed degenerative disc disease at L2-3, L3-4, and L4-5 and degenerative changes at the sacroiliac joints bilaterally. The examiner diagnosed lumbar disc disease with moderate left lower extremity S-1 radiculopathy and moderate mechanical low back pain with loss of range of motion. The Veteran could not exercise or partake in recreational activities. Chores were moderately limited due to the service-connected low back disability. Shopping, traveling, bathing, dressing, toileting, and grooming were mildly limited due to the service-connected low back disability. The examiner observed that the Veteran's low back disability would cause difficulty with bending, stooping, lifting, standing, and walking. The examiner noted that the Veteran was a "poor community ambulator" without an assistive device. As noted above, the only issue before the Board is entitlement to a disability rating in excess of 20 percent prior to March 30, 2010. The Board previously considered and denied entitlement to an evaluation in excess of 40 percent effective March 30, 2010, and this outcome was not vacated by the Court. As to the period before March 30, 2010, the Board finds that the weight of the lay and medical evidence does not demonstrate that a rating in excess of 20 percent is warranted under the either the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Considering first an increased rating based on incapacitating episodes, a disability rating in excess of 20 percent is not warranted, as incapacitating episodes are not reflected in the record prior to March 30, 2010. Indeed, examination reports dated prior to March 30, 2010 explicitly indicate the absence of incapacitating episodes. The Board recognizes that in November 2007, the Veteran wrote that pain sometimes led him to spend the day in bed. There is no indication, however, that he was incapacitated or that bed rest was medically prescribed. Similarly, an evaluation in excess of 20 percent before March 30, 2010 is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. A 40 percent evaluation would necessitate, in pertinent part, either ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine to 30 degrees or less. Neither condition is met. There is no indication of ankylosis, and the only time before March 30, 2010 that forward flexion of 30 degrees was noted was when the Veteran was wearing a corset in August 2005. Without the corset, forward flexion was from zero to 50 degrees. The Board observes that the Veteran indicated that he did not use or rarely used braces and other similar devices because they did not help. Because the Veteran does not meet either of the criteria that might give rise to a 40 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is denied prior to March 30, 2010. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 (2012) provides that consideration also be given to weakened movement, excess fatigability, and incoordination. In light of the Veteran's complaints, the Board has carefully considered 38 C.F.R. §§ 4.40, 4.45, 4.59, as well as the Court's holding in DeLuca. The Board finds that the Veteran's complaints of pain and functional loss, however, have been considered in assigning the 20 percent disability rating effective prior to March 30, 2010. The Board acknowledges that the Veteran has reported pain with motion, and the August 2007 examination report indicated pain was present across the entire range of forward flexion. The Court has clarified, however, that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not, in and of itself, the equivalent of functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 41-43 (2011). Specifically, the Court held in Mitchell that "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Id. at 43. Rather, according to the Court, "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [. . .] in order to constitute functional loss." Id. at 43 (quoting 38 C.F.R. § 4.40). In the present case, the Board observes that while the Veteran reported pain across his entire range of forward flexion, pain was not reported with extension or bilateral flexion or rotation. Motor strength, at 5/5 in the abdomen and lower extremities, was also not diminished, and no additional limitation of motion was noted to result with repetitive motion. Finally, the examiner stated that the Veteran exhibited "no functional limitations on standing or walking entering the clinic." Based on the totality of these findings, the Board concludes that the Veteran's pain, in and of itself and in the absence of other functional impairment, does not warrant the award of a 40 percent disability rating prior to March 30, 2010, for limitation of motion of the spine. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disability at issue. The criteria specifically provide for ratings based on the presence of arthritis, limitation of motion of the spine including due to pain and other orthopedic factors and incapacitating episodes. 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca. The symptomatology and impairment caused by the Veteran's lumbosacral spine disability is contemplated by the pertinent schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for disability ratings based on a combination of the symptoms claimed by the Veteran and clinical findings and other evidence of record. In this case, the Veteran has reported pain, tenderness, and limitation of motion of his low back resulting from his degenerative disc disease. These symptoms are part of or similar to symptoms listed under the pertinent schedular rating criteria for spinal disorders. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the disability on appeal, and referral for consideration of an extraschedular evaluation is not warranted. In conclusion, the Board finds that the weight of the lay and medical evidence does not demonstrate that a disability rating in excess of 20 percent prior to March 30, 2010 is warranted. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). TDIU The Veteran seeks a total disability rating based on individual unemployability due to service-connected disability (TDIU). He contends that his service-connected disabilities prevent him from obtaining and maintaining gainful employment. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). A threshold requirement, however, for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must first refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In the present case, service connection has been granted for a low back disability, with a 40 percent evaluation; and for radiculopathy of the right lower extremity, with a 20 percent disability rating. The Veteran's combined disability rating is 50 percent. Thus, although he has at least one disability rated at 40 percent disabling, his combined rating is less than 70 percent, and he does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Regardless, the Board must also consider entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b). At present, the Veteran is 75 years of age and worked for many years as the owner of an equipment business. He sold this business to his son several years ago, and is currently retired and not actively pursuing employment. He reported previous work as an engineer and a mechanic. The Veteran has been afforded various VA examinations during the pendency of this appeal, as noted above. On VA examination in March 2010, the examiner observed that the Veteran could not exercise or partake in recreational activities. Chores were moderately limited due to the service-connected low back disability. Shopping, traveling, bathing, dressing, toileting, and grooming were mildly limited due to the service-connected low back disability. The examiner observed that the Veteran's low back disability would cause difficulty with bending, stooping, lifting, standing, and walking. The examiner noted that the Veteran was a "poor community ambulator" without an assistive device. In February 2011, this examiner, after reviewing the claims folder and more recent X-rays of the Veteran's lumbosacral spine, submitted an addendum to the March 2010 examination report. The examiner acknowledged the Veteran's service connection awards for degenerative disc disease of the lumbosacral spine and radiculopathy of a lower extremity; he concluded, however, that these disabilities, while impairing the Veteran's mobility, did not rule out more sedentary work. Thus, the Veteran was not unemployable secondary to his service-connected disabilities. A second VA examiner, a physician, reviewed the claims file and examined the Veteran in April 2011. The Veteran's service connection awards for degenerative disc disease of the lumbosacral spine and radiculopathy of a lower extremity were noted by the examiner. The examiner concluded that the Veteran's disabilities would result in severe impairment in sports participation; moderate impairment in exercise; mild impairment in the performance of chores, shopping, recreation, bathing, and dressing, and; no impairment in traveling, feeding, toileting, grooming, and driving. Regarding occupational impairment, the examiner concluded the Veteran's service-connected disabilities did not result in total occupational impairment, as the Veteran remained capable of sedentary employment. After considering the totality of the record, the Board finds the weight of the lay and medical evidence does not demonstrate that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Board acknowledges that the Veteran is unemployed, and has remained so for many years. Although the Veteran's service-connected disabilities no doubt result in some degree of functional impairment, as acknowledged by his current compensable ratings and the VA examination reports, they are not shown to prevent all forms of employment, to include sedentary employment, according to these same examination reports. Two different VA examiners concluded in 2011, after personally examining the Veteran and reviewing his claims file, that his service-connected disabilities did not prohibit all forms of employment. In the absence of any objective evidence to the contrary, entitlement to a TDIU is not warranted. The Veteran has offered his own assertions regarding the level of impairment resulting from his service-connected disabilities, and the Board finds him credible to testify regarding such observable symptomatology as chronic low back and lower extremity pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). He has not, however, demonstrated, or submitted evidence establishing that he is precluded from obtaining and maintaining all forms of employment, to include sedentary employment. The Board concludes that the Veteran's lay statements do not, in and of themselves, equal or exceed the probative weight of the various medical opinions of record regarding his current level of impairment. Overall, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities, in and of themselves, render him unable to secure or following a substantially gainful occupation. In conclusion, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities, by themselves, prevent him from securing or following substantially gainful employment consistent with his education and occupational experience. Therefore, a referral of the Veteran's claim to VA's Director of C&P for consideration of entitlement to a TDIU under 38 C.F.R. § 4.16(b) is not warranted. As a preponderance of the evidence is against the award of a total disability rating based on individual unemployability due to service-connected disabilities, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER A disability rating in excess of 20 percent prior to March 30, 2010, for degenerative disc disease of the lumbosacral spine with mechanical low back pain is denied. A total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs