Citation Nr: 1323909	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO.  96-40 633	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York

THE ISSUES

1.  Entitlement to a rating in excess of 40 percent for chronic dorsolumbar strain. 

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to April 17, 2003.  

(The issues of entitlement to automobile and adaptive equipment or for adaptive equipment, to a compensable rating for hearing loss of the left ear, and to an effective date prior to November 1, 2010, for a 10 percent rating for residuals of a left wrist fracture will be addressed in a separate decision).  


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Fussell, Counsel


INTRODUCTION

The Veteran served on active duty from May 1965 to November 1965, from September 1967 to August 1970, and from April 1971 to May 1975.  

This appeal to the Board of Veterans' Appeals (Board) arises from September 1994 and September 1995 rating decisions.  In the September 1994 rating decision, the RO continued a 40 percent rating for the Veteran's chronic dorsal lumbar strain and a 10 percent rating for the Veteran's left ankle fracture.  In March 1995 the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in April 1995, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals, in November 1995. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein.  

In March 1995, the Veteran testified during a hearing before a Hearing Officer at the RO; a transcript of that hearing is of record. 

In the September 1995 rating decision, the RO, inter alia, denied a TDIU. In November 1995, the Veteran filed a NOD.  A SOC was issued in July 1996, and the Veteran filed a substantive appeal (via a VA Form 9) in July 1996. 

In March 1998, the Veteran testified during a Board hearing before a Veterans Law Judge at the RO (commonly called a travel Board hearing); a transcript of that hearing is of record. 

In an October 1998 decision, the Board denied entitlement to increased ratings for the Veteran's service-connected chronic dorsolumbar strain and status post left ankle fracture and remanded the claim for a TDIU to the RO.  In February 1999, the appellant filed a motion for reconsideration of the October 1998 Board decision.  In April 1999, the Vice-Chairman of the Board denied the appellant's motion for reconsideration under the provisions of 38 U.S.C.A. §§ 7103, 7104 (West 1991) and 38 C.F.R. § 20.1000, 20.1001.  

The Veteran appealed the October 1998 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In September 2000, counsel for the VA Secretary and the appellant filed a Joint Motion for Partial Remand to the Board; by September 2000 Order, the Court granted the Joint Motion, vacating those portions of the October 1998 Board decision that denied increased ratings for the Veteran's service-connected chronic dorsolumbar strain and status post left ankle fracture, and remanding those matters to the Board for proceedings consistent with the Joint Motion. 

In May 2001, the Board remanded to the RO the claims remanded by the Court, for further action.  After accomplishing for action, the RO continued the denials of the claims for increased ratings and for a TDIU (as reflected in July 2003 and June 2004 supplemental SOCs (SSOCs)), and returned these matters to the Board for further appellate consideration. 

In a September 2004 decision, the Board denied increased ratings for the Veteran's service-connected chronic dorsolumbar strain and status post left ankle fracture, as well as denied the claim for a TDIU.  The Veteran, in turn, appealed the Board's September 2004 decision to the Court. In October 2005, counsel for the VA Secretary and the appellant filed a Joint Motion for Remand to the Board; by October 2005 Order, the Court granted the Joint Motion, vacating the September 2004 Board decision and remanding the claims to the Board for proceedings consistent with the Joint Motion. 

In February 2006, the Board remanded the claims remanded by the Court to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action.  In a June 2007 rating decision, the RO granted a 30 percent rating for the Veteran's status post left ankle fracture, effective July 20, 2006, and granted a TDIU, effective July 20, 2006; however, the RO continued the denial of higher ratings for the service-connected chronic dorsolumbar strain and status post left ankle fracture (as reflected in June 2007 and March and September 2008 and February 2009 SSOCs).  In September 2007, the Veteran filed a NOD with the effective date assigned for the grant of a TDIU.  In March 2008, the RO issued a SOC addressing entitlement to an effective date earlier than July 20, 2006 for a TDIU.  The RO accepted a May 2008 statement from the Veteran's attorney as a substantive appeal in lieu of a VA Form 9. 

While the RO has characterized the matter in regard to the claim for a TDIU as entitlement to an earlier effective date for a TDIU, as the Veteran had previously perfected a claim for a TDIU in July 1996, and, in the June 2007 rating decision, the RO granted a TDIU, effective July 20, 2006, the Board has re-characterized this matter as entitlement to a TDIU prior April 17, 2003 (since an October 2011 rating decision granted a TDIU effective date as of April 17, 2003), as reflected on the title page. 

The Board notes that the Veterans Law Judge who conducted the March 1998 hearing is no longer employed by the Board. The Veterans Law Judge chairing such a hearing must decide the veteran's appeal, unless that right is waived by the veteran.  See 38 U.S.C.A. § 7107(c) (West 2002).  In July 2009, the Board notified the Veteran that he could request a hearing with another Veterans Law Judge, noting that, if he did not respond to the letter within 30 days the Board would assume that he did not want an additional hearing.  No response has been received from the Veteran concerning this matter.  Accordingly, consistent with the July 2009 letter, the Board will presume that no additional Board hearing is desired.  

Additionally, in an October 2009 decision the Board noted that while the RO had granted a higher rating of 30 percent for the Veteran's status post left ankle fracture, effective July 20, 2006, inasmuch as higher ratings for this disability are available before and after that date, and the Veteran was presumed to seek the maximum available benefit for a disability, the Board characterized the appeal involving the left ankle fracture as encompassing two claims as set forth on the title page of that decision.  See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). 

In the October 2009 decision the Board denied a rating in excess of 10 percent for status post left ankle fracture, for the period prior to April 17, 2003; but, with resolution of all reasonable doubt, granted a 20 percent rating for status post left ankle fracture, for the period from April 17, 2003 through July 19, 2006; and denied a rating in excess of 30 percent for status post left ankle fracture, for the period since July 20, 2006.  The claims for a rating in excess of 40 percent for chronic dorsolumbar and for a TDIU prior to July 20, 2006, were remanded.  

Thereafter, the Veteran submitted correspondence which was received on November 18, 2009, disagreeing with the ratings assigned for the service-connected left ankle and the effective dates of those ratings. 


A May 2011 rating decision granted service connection for coronary artery disease (CAD), status post myocardial (MI) infarction times two, and assigned a 10 percent rating effective October 3, 1994, and a 30 percent rating effective June 30, 1999.  This resulted in a combined disability rating of 50 percent from January 14, 1992; of 60 percent from June 30, 1999; and of 70 percent from April 17, 2003.  

A September 20, 2011, RO letter to the Veteran acknowledged receipt on November 18, 2009, with the evaluations and ratings for the service-connected left ankle but it was noted that the rating decision merely effectuated the October 2009 Board decision.  His correspondence was forwarded to the Board for review and the Veteran was requested to allow for 60 days for the Board to respond.  A copy of that September 20, 2011 RO letter was sent to the Veteran's attorney.  While there is no apparent responding letter by the Board of record, it must be noted that an RO decision which merely effectuates a Board decision, as is the case of the October 2009 RO decision, is not appealable to the Board.  See Powell v. Shinseki, No. 11-2328, slip op. (U.S. Vet. App. July 26, 2012) (nonprecedential memorandum decision) (stating that in such a case the remedy was to seek reconsideration by the Board or review by the Court and because in Powell neither avenue was pursued the Board's decision became final).  

Thereafter, an October 2011 rating decision granted an earlier effective date for a TDIU was granted, as of April 17, 2003, and granted an earlier effective date for eligibility to Dependents' Educational Assistance under 38 U.S.C. chapter 35, as of April 17, 2003.  

Also, a November 2011 rating decision granted an increase from a noncompensable rating for residuals of a left wrist fracture to 10 percent, effective November 1, 2010.  That rating decision also confirmed and continued a noncompensable disability rating for service-connected hearing loss of the left ear.  

The case has now been returned for appellate consideration.  


FINDINGS OF FACT

1.  Throughout the appeal the Veteran's chronic dorsolumbar strain has been manifested by complaints of pain, as well as other subjective complaints which have not been clinically corroborated, and limited motion but he has not had ankylosis of any spinal segment, muscle spasm, or objective confirmed motor or sensory deficits of the dorsolumbar spine or either lower extremity.  

2.  The Veteran was notified by RO letter in October 1990 of a rating decision that month which denied a TDIU rating.  The Veteran did not appeal that decision and that decision is final.  

3.  The Veteran is service-connected for a chronic dorsolumbar strain, rated 40 percent since January 13, 1992; CAD, status post MI times two, rated 10 percent disabling from October 3, 1994, and as 30percent since June 20, 1999; status post left ankle fracture rated 10 percent from January 14, 1992, 20 percent from April 17, 2003, and 30 percent from July 20, 2006; residuals of a left wrist fracture, rated noncompensably disabling from October 3, 1994 and as 10 percent disabling from November 1, 2010; and hearing loss of the left ear, evaluated as noncompensably disabling since June 11, 1996.  These resulted in a combined disability rating of 50 percent from January 14, 1992; 60 percent from June 30, 1999; and 70 percent from April 17, 2003.  He has been assigned a TDIU rating since April 17, 2003. 

4.  The Veteran has at least a high school education, last worked on a full-time basis and was engaged in substantially gainful employment in 1985.  

5.  The Veteran first met the percentage requirements for a TDIU rating on April 17, 2003; and prior thereto the weight of the evidence of record indicated that his service-connected disabilities did not prevent him from obtaining or retaining substantially gainful employment.  


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 40 percent for chronic dorsolumbar strain are not met.  38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59; Diagnostic Codes 5292 and 5295 prior to September 26, 2003; and Diagnostic Codes 5237 and 5242 since September 26, 2003 (2012).  

2.  The unappealed rating action of October 1990, which a TDIU rating and of which the veteran was notified, is final.  38 U.S.C.A. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.105(a), 20.1103 (2012).  

3.  The criteria for an effective date prior to April 17, 2003, for a TDIU rating are not met.  38 U.S.C.A. § 5110(a) and (b)(2) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16(a), 4.18, 4.19 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. § 3.102, 3.156(a), 3.159, and 3.326(a) (2012).  

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).  

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed.Reg. 23,353 - 23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.  

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA-compliant notice was intended to be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id., Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F/3d 1339 (Fed. Cir. 2003).  Here, however, the appeal stems from rating decisions prior to the enactment of the VCAA and, so, initial compliance therewith was not possible.  However, the VCAA notice requirements may, nonetheless, be satisfied if notice if given, followed by readjudication of the claim, e.g., in a Supplemental SOC.  Id.  

In the February 2006 Board remand, the Veteran was to be provided a VCAA complaint notice letter as to the claim for an increased rating for his service connection dorsolumbar strain.  This was done by RO letters dated in March 2006 and June 2008.  

As to the claim for a earlier effective date for a TDIU rating, there has been VCAA notice compliance as to that claim, as noted in the February 2004 Board decision, by RO letter also dated in June 2008.  

Significantly, the September 2005 Court's Order and the underlying JMR did not address or find that there was any failure to provide VCAA compliant notice as to the claims for an increased rating for the service-connected dorsolumbar strain or for a TDIU rating.  Moreover, because a TDIU rating has been granted, that claim has been more than substantiated, it has been proven.  The only remaining issue is the appropriate effective date.  The Veteran's disagreement with the initial effective date assigned does not require additional notice and any notice defect is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3) (2012).  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 earlier effective date for a TDIU rating.  Dingess, at 19 Vet. App. 473. 

Moreover, the Veteran has been represented by an attorney experienced in veterans law and because this case has twice been remanded by the Court and on each occasion there was no finding by the Court or any mention in the underlying JMRs that there was any VCAA notice deficiency, it must be concluded that the Veteran and his attorney are well aware of what is needed to substantiate the claims now before the Board.  

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.  Pertinent medical evidence associated with the claims file consists of VA and private treatment records, and the reports of multiple VA examinations.  Also of record and considered in connection with the appeal are the transcripts of the Veteran's March 1995 and March 1998 hearings, along with various statements submitted by the Veteran and his attorney, on his behalf. 

The Board remanded the case in 2009 to obtain any available records from the Social Security Administration (SSA), and to obtain records from the Department of Labor or the Office of Personnel Management pertaining to the Veteran's disability retirement from the federal workforce, and these records are also on file 

In August 2010 a copy of the Veteran's claim file, including his Vocational Rehabilitation file, consisting of 1,500 pages was mailed to the Veteran, at his request.  

The September 2000 JMR noted that the VA examinations in April 1992 and February 1994 did not adequately reflect the effects of the Veteran's complaints of pain on range of motion of his back and ankle.  Tor this reason, additional VA examinations were conducted in 2003 and 2004.  A September 2004 Board decision was vacated because a September 2005 JMR found that the 2003 and 2004 VA examinations had not complied with a 2001 Board remand to assess the impact of flare-ups and the degree of reduced ability to work due solely to the service-connected left ankle and low back disorders.  In 2006 the Board remanded the case for an examination for this purpose.  

The Veteran underwent a VA orthopedic examination in September 2011 which addressed the impact of his service-connected thoracolumbar disability upon employment and his functional ability.  

The Board finds that the RO has substantially complied with the Board's remand order and the report of VA examinations in this case are adequate to evaluate the dorsolumbar strain and the affects of his service-connected disabilities as to obtaining or retaining substantially gainful employment.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).  

The 2006 Board remand also requested that a social and industrial survey be conducted, and this was done in August 2006. 

As to the hearing conducted in this case, 38 C.F.R. § 3.103(c)(2) imposes "two distinct duties" on hearing officers: (1) "[A] duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim," and (2) a duty to "suggest that a claimant submit evidence on an issue material to substantiating the claims. 

However, even if not all elements required for claim substantiation are explicitly set forth at a hearing, if those matters are developed by VA, there is no indication of any outstanding additional evidence or information, and particularly if any VA examination was conducted to address such matter, the purpose of 38 C.F.R. § 3.103(c)(2) if fulfilled.  See Bryant v. Shinseki, 23 Vet. App. 488, 498-99 (2010) (a VA examination addressing service connection elements of current disability and nexus, when there was no indication of outstanding evidence, satisfied 38 C.F.R. § 3.103(c)(2), even when those elements were not explicitly set forth as material issues at a hearing).  Here, the extensive evidentiary development for the claim for an increase rating for the service-connected dorsolumbar spine includes obtaining VA and private clinical records, records from SSA and OPM as well as additional VA examinations.  Thus, in accordance with the holding in Bryant, 23 Vet. App. at 498-99, there has been compliance with 38 C.F.R. § 3.103(c)(2).  

In summary, the duties imposed by the VCAA have been considered and satisfied.  Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of these claims.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the claims.  Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture.  See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998).  

Following the Court's Orders in September 2000 and September 2005, the Veteran's file has grown to voluminous proportions.  Nevertheless, the Board has thoroughly reviewed all the evidence of record.  The Board has an obligation to provide reasons and bases supporting any decision, but there is no requirement to discuss, in detail, all pieces of evidence on file, or submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran must not assume that the Board has overlooked pieces of evidence which are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122(2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran).   

Background

STRs in July 1965 show the Veteran sustained a simple closed fracture of the left ankle while horseback riding.  He was provided casting in October 1965.   Later ankle X-rays revealed good healing and callus formation.

STRs show that in March 1970 he reported a lengthy history of low back pain as a result of an undisclosed injury in Vietnam.  After an examination of his back the diagnosis was a lumbosacral strain. 

On initial post service VA examination in March 1976, the Veteran reported that in 1968 a heavy object fell and struck him in the center of his back.  He said that since that injury, he has had intermittent back pain, localized in the low dorsolumbar region.  On examination, mild tenderness to deep pressure was noted over the D-11, D- 12, L-1 and L-2 levels without muscle spasm.  X-rays of the dorsal and lumbar spine were negative.  The diagnosis was post-traumatic chronic low dorsolumbar strain. 

On a VA examination in March 1981 the Veteran reported that as to his 1965 left ankle fracture, it was symptomatic, being occasionally painful and, at times, swollen.  Examination revealed that ankle jerks were active and equal.  Sensation was grossly normal throughout both lower extremities.  The left ankle was stable with no ligamentous laxity, soft tissue or bony changes.  Range of motion of the ankle was essentially normal.  A left ankle X-ray revealed the bones and joints to be normal in structure and density.

On VA examination in August 1984 it was noted that the Veteran had not had neurological changes, signs, or symptoms affecting either lower extremity.  His gait was normal.  

In the Veteran's VA Form 21-9840, Application for Increased Compensation Based on Unemployability, received in September 1984, the Veteran did not report that he had become too disabled to work but did indicate that his back disability affected his full-time employment.  In an attachment he reported that he had started VA Vocational Rehabilitation training to become a carpenter and had worked at that job until applying for employment with the U.S. Post Office, which accepted him but had not placed him in sedentary employment but, rather, had him lugging and handling mail as a result of which his physician had instructed the Veteran not to work.  The Post Office had then fired the Veteran but the Veteran obtained a favorable ruling form the Department of Labor but the Post Office refused to take him back.  In August 1981 he returned to construction work but was only able to work seven months until he went to work for his brother's construction company in August 1982, where he was employed until July 1984 but he had missed several weeks of work at a time and was then working as a supervisor.  In July 1984 he was rejected for employment with the Post Office due to his back condition and in August 1984 he started working as a carpenter for a private company.  He hoped to find employment outside of the construction industry.  

The Veteran was notified by RO letter in November 1984 of a rating decision that month which denied a TDIU rating.  The Veteran did not appeal that decision.  

The Veteran has submitted a copy of a Notice of Personnel Action dated in August 1985 reflecting a pay adjustment in his work as a Special Employment Program Employee with the U.S. Army.  His handwritten notation states that he finished that job in 1985 due to an injury.  

During VA hospitalization in April 1986, after being admitted for hemoptysis, it was noted that the Veteran had smoked two packs of cigarettes daily for 20 years.  

Treatment records of Dr. Heap include a December 1987 record that a job description which was filled out for the Veteran was that he could work with a permanent partial disability that would allow him to handle light work.  He could perform a little squatting and bending that would allow uploading files and work of that nature.  While weather changes could aggravate his condition it should not interfere with working at an indoors "light type of job."  However, the Veteran felt that the weather caused enough problems that he felt that he could not handle any type of work.  The physician suggested that the Veteran reach a settlement with his employer concerning his disability claim but the physician again stated that he felt the Veteran would be permanent and partially disabled, i.e., totally disabled from any sort of heavy work but the permanent partial disability was approximately 20 percent which should allow him to do light work.  

On VA examination in April 1988 the Veteran complained of increasingly frequent and severe low back pain, and increasing pain and swelling of the left ankle.  He reported that usually he could not stand for more than half an hour.  On examination his gait was normal.  There was no weakness or atrophy of the lower extremities and sensation was grossly normal.  

In the Veteran's VA Form 21-9840, Application for Increased Compensation Based on Unemployability, received in March 1990, the Veteran reported that he had become too disabled to work and had last worked in December 1985 as a journeyman carpenter for the Department of the Army.  He reported that he had left his last job because of disability, for which he was receiving disability retirement benefits but did not receive or expect to receive workers compensation.  As to whether he had tried to obtain employment since then he reported both that he had and that he had not.  He had two years of college education.  

VA orthopedic examination in April 1990 the Veteran reported that he had not been able to seek gainful employment due to his inservice injury.  He had a very painful gait, tending to walk with hips and knees flexed, such that he was not particularly stable.  Straightening his knees and hips caused severe low back pain.  There was a marked protective withdrawal reaction with hips and knees going to further flexion.  Straightening was possible but backward bending was to less than 10 degrees.  Forward bending was extremely painful and was limited to 60 degrees.  Side-to-side movements of the lumbosacral spine were from 0 degrees to 10 degrees, and rotation was from 0 degrees to 10 degrees.  All movements were extremely limited due to pain.  There was a mild increased in the entire lumbar curve and neurological examination found some tenderness in the lumbosacral spine.  Muscle strength was normal in his extremities and there were no sensory deficits.   X-rays revealed mild loss of the height of the intervertebral disc space at L1-2, interpreted as early degenerative disc disease (DDD), and there was minimal degenerative arthritis of the thoracic spine.  As to his left ankle, the Veteran had dorsiflexion from 0 degrees to 20 degrees and plantar flexion from 0 degrees to 50 degrees.  Inversion was from 0 degrees to 30 degrees, and eversion was from 0 degrees to 15 degrees.  X-rays of the left ankle were normal.  

The Veteran was notified by RO letter in October 1990 of a rating decision that month which denied a TDIU rating.  The Veteran did not appeal that decision.  

On VA examination in April 1990 the Veteran complained of increasing back pain, which he indicated resulted in an inability to straighten up without causing his knees to tend to give out from under him.  He reported that this happened some days more than others and was coincident with back pain.  On examination he was not particularly stable and straightening out his knees and hips caused him to have severe pain in the low back area.  The examiner found that the Veteran had extremely disabling low back pain and strain with marked limitation of movement of the low back because of pain.  He added that low back pain triggered a flexor response in the lower extremities and giving out of the knees with no actual motor involvement of either knee.  Lumbosacral X-rays revealed findings consistent with early DDD.  Minimal arthritic changes were noted in the mid-thoracic vertebral bodies. 

An April 1991 Board decision denied a rating in excess of 40 percent for a service-connected dorsolumbar strain and denied a compensable rating for service-connected left ankle fracture residuals.  

On VA examination of the Veteran's left ankle in February 1992 it was reported that the Veteran was completely disabled because of a back condition.  He moved about easily and well and with no apparent limp.  He was unable to walk on the heel of the left foot due to an inability to get the left forefoot off the floor.  On external examination of the left ankle presented no change or difference in appearance or contour from the right ankle. There was no evidence of inflammatory reaction and measurements of the right and left malleoli were equal. There was a loss of dorsiflexion of the left foot and complaints of pain with an attempt to force dorsiflexion, as well as pain on forced plantar flexion, which was to 55 degrees.  A left ankle X-ray was normal with no degenerative changes.  The diagnosis was residuals of an old healed fracture of the left ankle with increasing stress symptoms with loss of dorsiflexion of the left foot at the ankle.  

On VA examination in April 1994 the Veteran reported having chronic back pain with intermittent exacerbations, depending on the weather.  He said that he worked as a carpenter in the past but stopped doing this in 1985 when his back pain became too severe.  On examination, he was moderately obese and had a mildly antalgic gait, tending to place less weight on the left lower extremity.  When standing he had a mildly hyperlordotic lumbar curvature.  He could flex his trunk from standing to 90 degrees and extend to approximately 10 degrees.  Lateral flexion was 20 degrees to the left and 30 degrees to the right.  Straight leg raising test was positive at 60 degrees on the left and negative on the right.  Sensory examination revealed intact sensation to light touch and proprioception throughout all lower extremity dermatomes.  Deep tendon reflexes were two plus and symmetric at the quadriceps and one plus at the triceps surae, bilaterally.  Motor examination of the lower extremities revealed 5/5 strength throughout, except for 4/5 strength of the left quadriceps, which was limited by pain.  Palpation of the lumbar spine revealed significant tenderness, paraspinally, from approximately L-2 through the S-1 level.  He had normal muscle bulk and tone of the left lower extremity.  As to his left ankle, he had 10 degrees of ankle dorsiflexion and 40 degrees of plantar flexion.  There was no significant palpable tenderness and no evidence of edema.  He could nearly approximate the soles of his feet with inversion and he had approximately 10 degrees of eversion.  He could stand on his toes and heels without difficulty.  The diagnoses were a history of left ankle fracture with no evidence of left ankle disability, and chronic lumbosacral back pain with no clinical evidence of current radiculopathy.  

At the March 1995 RO hearing the Veteran's service organization representative averred that the Veteran could not work due to his service-connected back and left ankle disorders.  The Veteran testified that he had last worked and been unable to work since December 1985 due to his back and left ankle disorders.  He had been on workers compensation for two years and then took disability retirement.  He had done several years of correspondence courses in college and had been a combat engineer during military service.  He did not have an associates or bachelor's degree.  

On examination in March 1995 by a private physician, Richard L. Withington, M.D., it was noted that the Veteran was being seen for discomfort in his lower back subsequent to a December 1985 injury while working on a roof.  On physical examination, the Veteran's motion was somewhat ponderous for someone of his age.  The examiner stated that the Veteran's activities consisted of doing some light carpentry work for which he was not paid.  The Veteran complained that he had a lot of pain when he seated for long periods of time and that his legs gave way if he was too vigorous.  He reported that on one occasion, his legs gave way and he fell and fractured his wrist.  He denied numbness or paresthesia in his lower extremities but he could flex forward to touch his knees.  Flip test was negative, bilaterally.  Deep tendon reflexes were active and equal in both lower extremities.  On manual muscle examination he was reported to be slightly weak for his age but strength was symmetrical, bilaterally.  X-rays of the lumbar spine appeared normal.  The diagnostic impression was chronic mechanical low back pain with a paucity of physical findings.  

In a May 1995 report by Dr. Withington to the Office of Personnel Management it was reported that the Veteran was not capable of doing heavy construction work, and probably would never be.  He had chronic low back pain with tenderness and tightness of the lumbosacral area.  He walked partially stooped forward.  Spinal X-rays were negative for arthritis.  The physical work as a carpenter, including heavy lifting, was such that he represented a risk of injury to himself.  Continued disability annuity was recommended.  He was capable of doing some light duty was not the type of work from which he retired.  

During the March 1995 RO hearing the Veteran testified that he injured his back while working for the Federal government in 1985, and he was in receipt of Federal retirement benefits.  

In the Veteran's April 1995 application for a TDIU he reported that he had two years of college education and had completed a carpenter's apprentice training program.  He listed work experience as a construction foreman, and said he last worked in December 1985.  

In June 1995 the Veteran reported that he had not looked for other employment and had withdrawn from the carpenters' union because he could no longer do that kind of work.  

Records of private treatment from March 1995 to April 1, 1997, reflect that the Veteran was referred for treatment by the U.S. Department of Labor, and the Veteran's physician, who was treating him for his back disability, provided carbon copies of his records to the U.S. Department of Labor.  

An April 1997 clinical record from Dr. Withington reflects that on examination the Veteran could walk without a limp.  He could walk on his tip toes and on his heels.  He could flex forward to touch his toes, if he bent his knees.  Manual motor examination of his lower extremities was normal and straight leg raising was to 80 degrees, bilaterally.  His hamstrings were snug at that level but deep tendon reflexes were active and equal, and there was no motor or sensory deficit.  

In April 1997 the Veteran presented a letter from the Office of Personnel Management (OPM) and Retirement Operations Center, requesting an up-to-date medical evaluation.  

At the March 1998 personal hearing, the Veteran described the current status of his back disorder, symptoms and the limitations caused by his back on activities.  Had fractured his left wrist 3 or 4 years earlier, in about 1994, because his legs had given out due to his back.  At times he had sought back treatment and had to be pushed in a wheelchair.  He was totally disabled from any type of heavy work and partially disabled from light work, the extent of which was very limited.  A physician had also stated that he was limited due to his heart and lung conditions.  He had radiating back pain which caused his legs to give out.  He also had chronic muscle spasms and when the radiating pain was severe he sometimes was unable to walk.  He had very limited back motion and could not do any lifting, prolonged walking, standing or sitting.  When he took disability retirement (following a 1985 work injury) he had been offered a clerical job and was told that if he took it, when he was tired, he could go to his motor home and rest but he did not feel that this was realistic and, also, taking such a job would have cut his retirement benefits in half.  He testified that he had a claim for Social Security disability pending.  He added that he had previously filed a claim for Social Security, and was denied.  He submitted a January 1998 Personal Earnings and Benefit Estimate Statement from SSA.  The statement indicated that the Veteran did not have enough work credits for SSA disability benefits.  

The Veteran underwent VA hospitalization in June and July 1999 for unstable angina, complaining of chest pain and exertional dyspnea.  He smoked one pack of cigarettes daily.  He had one vessel coronary artery disease (CAD).  
The discharge diagnoses included a finding that an MI was to be ruled out.  

The Veteran underwent VA hospitalizations in March 2002 and again in June 2002 for respiratory distress.  The diagnoses included bronchitis and COPD.  

VA outpatient treatment records show that the Veteran has been seen since at least 1999 for respiratory care.  In September 2003 he was to be placed on continuous oxygen therapy.  

On VA audiology examination in March 2003, the Veteran's pure tone thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz were 5, 10, 15, and 15 decibels, respectively, with average decibel loss of 11.25.  Pure tone thresholds in the left ear at 1000, 2000, 3000, and 4000 Hertz were 10, 25, 65, and 60 decibels, respectively, with an average decibel loss of 40.  Speech recognition or discrimination was 100 percent in the right ear and 92 percent in the left ear.  

On VA examination on April 17, 2003, the Veteran complained of pain in his back and stiffness in his left ankle.  He reported that he had trouble with walking and standing.  Examination showed no evidence of any deformity of the thoracic or lumbar curve.  There was minimal tenderness of the thoracic and lumbar musculature.  Range of motion of the lumbar spine was flexion to 35 degrees with normal to 50 degrees, extension was to 5 degrees with normal to 35 degrees, and side-bending was to 30 degrees on each side with normal to 40 degrees.  Neurological examination was within normal limits.  On examination of his left ankle there was no evidence of any deformity of the ankle.  Stability was good.  Range of motion of the left ankle was dorsiflexion to 5 degrees with normal to 20 degrees, and plantar flexion was to 20 degrees with normal to 40 degrees, and side bending was to 30 degrees on each side with normal to 40 degrees.  Neurological examination was within normal limits.  The diagnoses were chronic lumbar sprain and status post fracture of the left ankle without residual impairment. 

A February 2004 VA examiner reviewed the Veteran's claims file.  The Veteran complained of pain in his back from a service injury.  He reported that a worker's compensation injury in 1985 had put him out of work.  He had not had any significant treatment for his back other than taking medications, which include Tylenol and Tylenol with codeine.  He reported that he had flare ups of his back pain about some 8-12 times per year, which last for a day or so.  He reportedly had one or two totally incapacitating episodes of back pain over the past year.  When he had such episodes, he went to an emergency room physician and had been treated with Tylenol with codeine during those episodes.  He denied any paresthesias of the lower extremities.  He reported that he did not use any assistive devices for his back condition, and that walking was limited due principally to his pulmonary condition rather than his back pain.  He said he did no lifting, pushing, or pulling.  He reported difficulty sleeping due to back pain.  He said he avoided stairs. 

On physical examination in February 2004 the Veteran walked with a slight limp of the left leg.  It was reported that his gait disturbance was due to the ankle condition. The lumbar spine showed slight flattening of the lumbar lordosis.  There appeared to be a slight increase in the thoracolumbar area, and there was tenderness on palpation of this area.  Thoracolumbar flexion was 30 degrees of a normal 90 degrees.  Extension was 0 degrees of a normal 30 degrees.  Side (lateral) bending was 15 degrees to each side of a normal 30 degrees.  Thoracolumbar rotation was 20 degrees to each side of a normal 45 degrees.  Straight leg raising was to 80 degrees bilaterally with minimal discomfort.  There was no sensory or motor deficit of either lower extremity.  Deep tendon reflexes of the lower extremities were present and symmetrical, bilaterally, at +1.  He walked with some degree of difficulty due to the ankle discomfort.  X-rays of the thoracic and lumbar spine were reported as normal.  The diagnosis was chronic lumbosacral sprain.   

The VA examiner commented that the April 2004 examination was conducted during a period of quiescent symptoms.  The symptoms elicited from the Veteran were compatible with the diagnosis.  It was reported that during flare-ups of symptoms, which could occur with varying frequency, the physical findings of this examination could be significantly different.  Quantification of such changes would require examination during a flare up.  The examiner concluded that painful symptoms such as have been outlined on the examination would require the Veteran to expend extra energy in completing tasks and would lead to early fatigue, weakened movements, and ultimately to loss of coordination.  

An August 2004 VA treatment record noted that the Veteran had been on chronic oxygen therapy for several years.  In November 2004 his medical history included chronic obstructive pulmonary disease (COPD) but he declined participation in a tobacco cessation program.  A March 2006 chest X-ray revealed over-inflation of the lungs consistent with COPD.  

A June 2006 record of VA treatment reflects that the Veteran complained of left ankle pain, level 4 out of 10, and was issued a straight cane.  

In correspondence received in June 2006 the Veteran indicated that he was totally disabled due to his back condition.  

On VA examination in July 2006 the Veteran complained of his occasional left ankle swelling and of back pain which radiated into both legs.  He had had a worker's compensation injury in 1985 and had been off work since then due to his back injury.  Currently, he did not use any assistive device to walk.  He took Tylenol #3 for his back.  He reported having significant limitations as to walking.  It was noted that he had respiratory disease and, hence, his ability for any kind of exercise was severely limited.  On examination he was not able to do any lifting, pulling or pushing.  He reported that standing caused back pain.  He was not able to kneel, squat or stoop due to the exertion.  Sitting and traveling in a car was also very limited.  He managed his personal hygiene without assistance and his sleep was frequently disrupted due to back pain.  He had difficulty traversing stairs, and bending at the waist caused back pain.  He reported having daily flare-ups of back pain.  He had had one episode of severe incapacitating back pain in the past year.  He denied bowel or bladder dysfunction and also denied any numbness in his legs.  He had not worked since his 1985 worker's compensation injury.  

On examination the Veteran had a limp, favoring the left leg.  He used oxygen by nasal catheter and carried the oxygen bottle with him.  He disrobed with some degree of difficulty but got on and off the examining table with very little difficulty.  He turned from side to side with difficulty.  He had minimal tenderness on palpation of the thoracolumbar paravertebral musculature but there was no gross deformity of that spinal segment.  There was no sensory deficit of the thoracic wall.  Straight leg raising was to 60 degrees, bilaterally, with back pain.  There was no sensory or motor deficit of either lower extremity.  Deep tendon reflexes of the lower extremities were bilaterally symmetrical at +1.  He was not able to tandem, toe or heel walk on the left foot due to ankle pain.  There was slight valgus deformity of the left ankle, but no pain on palpation.  There was no evidence of any instability of the ankle on stress examination.  Range of motion testing revealed dorsiflexion to 10 degrees, of a normal 20 degrees, and plantar flexion to 30 degrees, of a normal 45 degrees.  Inversion was to 10 degrees, of a normal 30 degrees, and eversion was to 10 degrees, of a normal 20 degrees.  

The examiner reported that the Veteran's range of motion and strength of the lumbar spine was diminished due to his complaint of difficulty breathing on attempts at repetitive motion testing, the extent and degree of which was not possible to determine due to the extreme subjectivity of the exercise.  The diagnoses were chronic thoracolumbar strain and status post fracture of the left ankle with residual degenerative joint disease (DJD). 

The VA physician that conducted the July 2006 examination subsequently reported that as to a request concerning the extent to which service-connected disabilities impaired an ability to engage in gainful employment, the Veteran had reported having daily flare-ups of back pain precipitated by activity and alleviated by rest and during such times his activity limitations were very severe, to the point that he was able to do very little in the way of activity.  However, X-rays in 2005, about 20 years after his 1985 injury, were normal.  Had the 1985 injury caused structural impairment, the X-rays 20 years later would have shown some degenerative changes.  It was thus opined that the gait disturbance from the service-connected left ankle fracture residuals as likely as not cause the dorsolumbar strain, which was aggravated by the 1985 injury.  Considering only his service-connected back and left ankle disorder, he would be capable of performing sedentary work.  However, with his respiratory condition, he would not even qualify for sedentary work.  

In a March 2007 addendum, the VA examiner who evaluated the Veteran in July 2006 indicated that he could not indicate, without resorting to mere speculation, whether there would be any additional limitation due to flare-ups, but attributed the Veteran's lack of endurance to a respiratory condition (as opposed to his service-connected left ankle disability).  

On VA social and industrial survey was conducted telephonically in August 2006.  It was noted that the Veteran had a past medical history of CAD with angina pectoris, osteoarthritis, esophageal reflux, COPD, and hypertension.  His medications and dosages were reported.  In a prior letter he reported having started vocational rehabilitation training for carpentry with a Carpenters International Union form July 1979 to May 1981 but on the current interview he reported he actually went to work until 1982 or 1983.  After having been rejected by the Post Office, after having been fired by same, he was refused a postal service job in 1984 due to his back.  After leaving work with his brother in July 1984 he worked out of a union hall for local contractors.  In August 1984 he was on a job that required a lot of heavy lifting but after 2 weeks he was laid off because he could not perform.  Two weeks later, he refused a job that required constant bending, which he was not able to do.  He started another job in August 1984 after being untruthful about his condition on a job application.  He had a high school education and several years of correspondence courses in college, for promotion and advancement.  He did not have an associate's degree.  In terms of day-to-day functioning, he spent most of his day in the house.  He was on oxygen, 2 liters by nasal cannula around the clock.  He got out of the house about 1 to 2 times monthly in the summertime but less in the winter.  He had a four-wheeler that he used to get around his yard and to visit other family members who lived on his property.  He was able to get out to go fishing on a riverbank and a pond on his property.  In the summer, he was able to get out and shop using a handicapped cart (motorized scooter) at stores.  At home, he was able to get around the inside of the house using a cane.  He did not currently have a wheelchair or a scooter.  He was able to perform his own activities of daily living in terms of hygiene and feeding himself.  He reported that his sister helped him by doing housework and preparing meals.  

Because the Veteran claimed entitlement to an effective date prior to July 2006, in February 2008 an opinion was sought as to whether the Veteran could be employed prior thereto while coordinating the dates of his physical status, beginning in 1992.  In response, a VA physician reported that he had previously examined the Veteran on three separate occasions.  Also, that physician had now reviewed the entire claims files.  When first examined by that physician in April 2003 the Veteran had complained of back and ankle pain.  A November 2002 thoracic spine CT scan had been normal.  Also, a November 1998 lumbosacral X-ray had been normal.  After the 2003 examination it had been the physician's opinion that the Veteran was complaining of a chronic lumbar sprain and left ankle fracture residuals without residual impairment.  On a subsequent examination in 2004 the Veteran related having had an inservice injury and a subsequent workers compensation injury in 1985, and he complained of severe back pain with frequent flare-ups, and on examination he had restricted lumbar motion.  At that time X-rays of his pelvis and the thoracic and lumbar spine were normal.  The diagnosis had been a chronic lumbosacral sprain and at that time he was using a nasal cannula oxygen support due to COPD.  When again seen in July 2006 the diagnosis remained a chronic thoracolumbar sprain.  His respiratory condition was unchanged.  While he had had a workers compensation injury in 1985, surprisingly a 1990 X-ray showed degenerative IVDS of only minimal degree at L1-2.  When examined in 1995 by a private physician, Dr. Withington, X-rays were normal.  

The VA physician reported that, in summary, the Veteran was treated conservatively after his inservice back injury and had very little difficulty until his 1985 re-injury and since then (1985) he had complained of increased back pain.  The Veteran had related his increased back pain as well as his pulmonary condition to his inservice back injury.  When last examined in 2006, he did not exhibit any gross deformities of the thoracolumbar spine and there was minimal tenderness on palpation of the thoracic and lumbar paravertebral musculature.  There was no sensory deficit of the thoracic or abdominal wall and lower extremity reflexes were symmetrical at +1.  He had not been able to tandem, toe, or heel walk on the left foot due to the left ankle fracture residuals.  It was noted that X-rays had been conducted from 1968 to 1995, and thoracolumbar X-rays in 1990 found minimal degenerative IVDS at the thoracolumbar junction, and X-rays in 1995 were normal, as were thoracic and lumbar X-rays in 2004.  

The VA physician opined that it was at least as likely as not that the Veteran's thoracolumbar condition was related principally to his COPD.  If he had had a significant thoracolumbar injury in 1968, he would certainly had have advanced thoracolumbar degenerative disc disease (DDD) by 1990, but 1990 X-rays showed only mild degenerative IVDS at the lumbosacral level and in 1995 X-rays were normal.  At the very most, the thoracolumbar DDD was minimal since following the initial diagnosis of DDD in 1990, and he was followed in 1995 by a normal thoracolumbar X-ray.  So, there was no significant degree of degenerative changes in the thoracolumbar spine area.  He did have, by recent studies, degenerative changes at L1-2 with disc space narrowing at that level with anterior spurring.  Thoracic spine X-rays in April 1988 showed mild degenerative changes with DDD and spurring at L1-2.  

The VA physician stated that starting with January 1992 until July 2006, it had to be noted that the Veteran had not worked since 1985 due to his disabilities, as he described them in 2006.  He stated that he was not able to do any lifting, pushing or pulling, and standing caused back pain.  He was not able to kneel, squat or stoop due to exertion as a result of his pulmonary condition.  Sitting and traveling in a car were also very limited.  He managed his personal hygiene without assistance.  His sleep was frequently disrupted by back pain and he had difficulty with stairs.  Bending at the waist caused back pain.  While he was not using a nasal cannula on examination in 2006, in 2004 he was dependent upon that cannula.  Apparently, he was a smoker and had thus developed COPD which would cause rigidity of the thoracic spine and the chest wall particularly.  It was the examiner's opinion that it was at least as likely as not that the thoracolumbar symptoms at the present time were due principally to COPD.  There was no evidence of any nerve root compression or irritation.  He complained of a back injury in 1968 but by 1990, 22 years later, X-rays were basically normal and he did not show any significant degenerative changes until very recently.  It was the physician's opinion that the current thoracolumbar impairment was due principally, if not entirely, to COPD.  The physician cited a medical text for the principle that reduction of pulmonary function correlated significantly with clinical and radiologic measures of severity of spinal deformities due to osteoporotic fractures.  

The Veteran was hospitalized in July 2008 and again in December 2008 and January 2009 for acute exacerbations of COPD, at which time it was noted that he was oxygen dependent.  

A May 2009 VAOPT record shows that the Veteran was again on continuous oxygen therapy.  He felt that his exertional dyspnea was improving.  He still had difficulties with outdoor activities of daily living.  His ambulation was still limited by shortness of breath.  He continued to use a singe-point cane for stability and he might benefit from using a walker, which he did not now have, for ambulation for longer distances.  He was not currently interested in pulmonary rehabilitation but wanted to speak with a pulmonologist about the possibility of a lung transplant.  He reported having quit smoking for the past 6 months.  

The Veteran underwent VA hospitalization in June 2009 for another exacerbation of COPD.  

A July 2009 VA treatment record reflects that the Veteran had had a stroke in January of either 2007 or 2008 which led to residual weakness of the left upper extremity.  In March 2010 it was noted that he had been hospitalized in February 2010 for shortness of breath and had a tracheostomy.  On examination active range of motion was within normal limits in all extremities.  Strength was grossly normal at 5/5 in all major muscle groups.  His balance when sitting and standing was good, and he was able to stand unsupported but with increasing difficulty when his base of support was reduced.  

A January 2010 letter from the Office of Personnel Management reflects that the Veteran was granted a disability annuity because he was found to be totally disabled for useful and efficient service in the position he occupied or for any other vacant position of the same pay grade level.  Enclosed was the supporting medical documentation.  A supervisor certified in April 1988 that the Veteran was unable to use a hammer and perform carpentry work.  Additional documentation reflects that he was offered a GS-3 Real Property Records Clerk position which he refused because he disagreed with his physician's certification that he was able to report for work to perform such duties and, so, he was removed from Federal Service on March 26, 1988.  

The Veteran was admitted to a VA hospital in January 2010 for another exacerbation of COPD and was transferred to CIU for hypercarbic respiratory failure requiring intubation.  During that hospitalization, in February 2010, it was noted that all of his extremities were weak.  He underwent extensive pulmonary treatment.  

The Veteran underwent VA hospitalization in June 2011 for chest pain.  During that hospitalization an examination revealed that he had normal motor strength in all extremities, reflexes were present, and a sensory examination revealed grossly normal sensations.  

On VA audiological evaluation in September 2011 the Veteran reported that he had no hearing difficulty, no dizziness, and no ear infections.  He had first gotten hearing aids in the 1980s and received new VA hearing aids in 2003.  

On VA orthopedic examination in September 2011 the Veteran complained of low back pain which was tooth-ache like in character and which radiated down the posterior aspect of his right leg to his ankle.  He reported that he was never pain free.  He self-rated that pain as 8 on a scale of 10.  He reported having flare-ups which impacted on function of his thoracolumbar spine.  Specifically, he reported that his back was aggravated by cold and damp weather, and that during flare-ups his pain, as he self-rated it, which remained toothache-like, was 10 out of 10.  

On physical examination the Veteran had right lateral flexion and left lateral flexion of the thoracolumbar spine to 20 degrees, with objective evidence of pain beginning at 20 degrees (with normal range of motion in these planes being to 30 degrees).  Right rotation and left rotation of the thoracolumbar spine were to 20 degrees, with objective evidence of pain beginning at 20 degrees (with normal range of motion in these planes being to 30 degrees).  As to whether the Veteran's range of motion did not conformed to normal as identified, but was normal for the Veteran, it was explained that this was due to his obesity.  He was able to perform repetitive-use testing with three repetitions.  After such repetitive testing his range of motion in lateral flexion and in rotation, in each direction, remained the same, i.e., to 20 degrees.  It was stated that he had no additional limitation of motion of the thoracolumbar spine following repetitive-use testing.  He had no functional loss and/or function impairment of the thoracolumbar spine.  He did have tenderness with palpation of the paraspinal lumbar region.  However, he had no guarding or muscle spasm of the thoracolumbar spine.  

On evaluating muscle strength in the Veteran's lower extremities, he had 4/5 strength of flexion of each hip, 5/5 strength of extension of each knee, 5/5 strength on plantar flexion as well as dorsiflexion of each ankle, as well as extension of each great toe.  Also, he had no muscle atrophy.  Deep tendon reflexes were 2+ at each knee and each ankle.  As to sensation, he had normal sensation to light touch, bilaterally, of the upper anterior thighs (the L2 dermatome), the thighs and knees (the L3-4 dermatome), the lower legs (the L4/L5/S1 dermatomes), and the feet and all toes (the L5 dermatome).  The examination found that straight leg raising was positive, bilaterally.  It was reported that he had radicular pain but it was not constant.  The radicular pain was in the right leg only and was intermittent, usually dull, and only mild.  He had no paresthesias, dysesthesias or numbness of either lower extremity.  He had no other symptoms or signs of radiculopathy.  The nerve roots involved were L4/L5/S1/S2/S3 nerve roots (of the sciatic nerve) but only of the right lower extremity and not the left lower extremity.  In fact, it was specifically found that there was no radiculopathy of the left leg and the radiculopathy in the right left was mild.  He had no bowel or bladder problems and no pathologic reflexes.  

The examiner reported that the Veteran did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine.  The Veteran used a cane, constantly, as an assistive device as well as an electric scooter, regularly, due to his back condition.  He did not have functional impairment of either lower extremity such that no effective function remained other than that which would be equally well served by amputation or prosthesis.  He had no scarring.  Imaging studies of the thoracolumbar spine confirmed the presence of arthritis but there were no vertebral fractures (and, so, no loss of height of a vertebral body).  

The examiner reported that the thoracolumbar disability impacted the Veteran's ability to work.  The examiner reported that the Veteran had been barred from joint the U.S. Army reserves due to his back.  He had then worked at a carpenters union but had lost three jobs due to his back condition.  He had worked at the U.S. Post Office but after 30 days his back was aggravated and he was released.  In   1984 he had had a job at Ft. Drum but while there, in 1985, his back was aggravated.  In 1990 he was given total disability for his back.  The examiner noted that the claims file was not available prior to the examination but had been made available the next day.  

Lumbosacral X-rays on the day of examination revealed the lumbosacral spine and sacroiliac joints were aligned and the curvature was normal.  There was slight narrowing at the L5-S1 disc space.  There was minimal degenerative change.  His remaining disc spaces, vertebral bodies, posterior elements, and sacroiliac joints were normal.  

In an October 2011 addendum it was reported that the September 2011 examination had revealed the Veteran's thoracolumbar flexion to be to 70 degrees, at which point pain began (with normal being to 90 degrees).  After repetitive testing flexion was still to 70 degrees.  Extension was to 20 degrees, at which point pain began (with normal being to 30 degrees).  After repetitive testing extension was still to 20 degrees.  

A rating in excess of 40 percent for chronic dorsolumbar strain

General Rating Principles

Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155.  Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of disability present.  38 C.F.R. § 4.1, 4.2.  A higher rating is assigned if it more nearly approximates such rating.  38 C.F.R. §§ 4.7, 4.21.  

Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119 (1999) (initial staged ratings) and Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim).   

Ratings for a joint based on limitation of motion require consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  In other words, ratings based on limited motion do not ipso facto include or subsume the other rating factors in §§ 4.40 and 4.45, e.g., pain, functional loss, fatigability, and weakness.  Thus, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Also with any form of arthritis, painful motion is factor to be considered.  Painful motion of a joint with periarticular pathology is to be at rated at least at the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  

When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable rating criteria, any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, and 4.59.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011) (noting that past precedent has indicated that painful motion may be equivalent to limited motion only under the specific language and structure of the second clause of Diagnostic Code 5003, which allows a 10 percent rating for otherwise noncompensable limited motion of arthritic joints); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  

Musculoskeletal disability is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to absence of all or a portion of necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology.  It may also be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  A little used part may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.   38 C.F.R. § 4.40.  

38 C.F.R. § 4.45 provides that factors of joint disability reside in reductions of their normal excursion of movements in different planes, and consideration is given to(a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.), (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.), (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.), (d) excess fatigability, (e) incoordination, impaired ability to execute skilled movements smoothly, and (f) pain on movement, swelling, deformity or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 

Also, 38 C.F.R. § 4.59 states that with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  

Spinal Rating Criteria

The criteria for evaluating intervertebral disc syndrome (IVDS, also called disc disease) were revised effective September 23, 2002, and renumbered under 38 C.F.R. § 4.71a, DC 5293 as DC 5243.  

The criteria for evaluating spinal disabilities, other than IVDS, under 38 C.F.R. § 4.71a, Diagnostic Codes 5285 through 5295 ("the old criteria") were revised effective September 26, 2003, at which time the diagnostic codes were renumbered.  

Generally, where the law or regulation change after a claim has been filed or reopened but before a final decision, the most favorable version most will apply.  Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991).  However, the revised law or regulation will not be applied prior to the stated effective date.  VAOGCPREC 3-2000 (Apr. 10, 2000).  

Because the claim for an increased rating was received prior to all of these changes, both the old and the new changes to the IVDS, if applicable, and spinal rating criteria must be applied.  However, in determining whether the IVDS criteria are applicable prior to the September 2002 revision only the old IVDS criteria apply; similarly, in rating the dorsolumbar strain for the period prior to the September 2003 rating change, only the old spinal rating criteria may be applied.  See VAOPGCPREC 3-2000 (April 10, 2000); VAOPGCPREC 7-2003 (Nov. 19, 2003); Rodriguez v. Nicholson, 19 Vet. App. 275, 288-89 (2005); see too 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114.  

The old criteria for rating IVDS were set forth at Diagnostic Code 5293 and provided that when IVDS was mild a 10 percent rating was warranted; 20 percent when moderate with recurring attacks; 40 percent when severe with recurring attacks with intermittent relief; and a maximum 60 percent when pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief.  

Under the new Diagnostic Code 5243, IVDS or disc disease, is rated either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations, whichever method results in the higher rating.  If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted.  If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted.  If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is warranted.  The revised IVDS rating criteria do not provide for an evaluation in excess of 60 percent on the basis of the total duration of incapacitating episodes.  

Note 1 to the revised Diagnostic Code 5293 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician.  Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician.  If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes.  67 Fed. Reg. 54345, 54347 (August 22, 2002).

Under both the old and the new IVDS criteria, separate evaluation of the orthopedic and neurologic components of a spinal disability, for combination under 38 C.F.R. § 4.25, was permissible.  See Bierman v. Brown, 6 Vet. App. 125 (1994).  

However, assigning separate ratings for combination may not be permitted to result in pyramiding under 38 C.F.R. § 4.14 - which prohibits "[t]he evaluation of the same disability under various diagnoses".  See Brady v. Brown, 4 Vet. App. 203, 206 (1993).  See, too, Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (the critical element is if symptoms of one condition are duplicative of or overlapping of another).  Thus, a rating for IVDS may not be assigned while at the same time assigning separate ratings for the orthopedic and the neurologic components of IVDS.  

Under 38 C.F.R. § 4.20, in rating peripheral neuropathy attention is given to sensory or motor impairment as well as trophic changes (described at 38 C.F.R. § 4.104, Diagnostic Code 7115").  

Peripheral neuropathy which is wholly sensory is mild or, at most, moderate.  With dull and intermittent pain in a typical nerve distribution, it is at most moderate.  With no organic changes it is moderate or, if of the sciatic nerve, moderately severe.  With loss of reflexes, muscle atrophy, sensory disturbance, and constant pain that at times is excruciating, it is at most severe.  Peripheral nerves ratings are for unilateral involvement; when bilateral, combine with application of the bilateral factor.  38 C.F.R. §§ 4.123, 4.124, 4.124a.  

"'Sciatic' refers to the sciatic nerve; sciatica is used to refer to 'a syndrome characterized by pain radiating from the back into the buttock and into the lower extremity along its posterior or lateral aspect, and most commonly caused by prolapse of the intervertebral disk' the term is also used to refer to pain anywhere along the course of the sciatic nerve'."  Ferraro v. Derwinski, 1 Vet. App. 326, 329-30 (1991).  

Sciatic neurological manifestations are rated under Diagnostic Code 8520 as paralysis of the sciatic nerve.  The criterion for a 10 percent rating is mild incomplete paralysis.  The criterion for a 20 percent is moderate incomplete paralysis and 40 percent when moderately severe.  When severe with marked muscular atrophy, 60 percent is warranted, and 80 percent is warranted for complete paralysis (with foot drop, no active movement possible below the knee, and weakened or, very rarely, lost knee flexion).  See also 38 C.F.R. § 4.124a, Diagnostic Codes 8620, 8720 (for sciatic neuritis and neuralgia). 

Note that the maximum for complete neuropathy of lower extremity peripheral nerves other than the sciatic nerve (Diagnostic Codes 8520 through 8530) is no more than 40 percent and only when there is motor impairment.  


Old Spinal Rating Criteria Other Than IVDS

Under 38 C.F.R. § 4.71a, Diagnostic Code 5285 residuals of a vertebral fracture without spinal cord involvement and without abnormal mobility requiring a neck brace (jury mast), is rated based on definite limitation of motion or muscle spasm, adding 10 percent for demonstrable vertebral body deformity.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5286 complete bony fixation of the entire spine (ankylosis) in a favorable angle warrants a 60 percent rating.  If in an unfavorable angle, with marked deformity and involvement of major joints or without other joint involvement, a 100 percent rating is warranted. 

Under Diagnostic Code 5288 a 20 percent rating is warranted for favorable and a 30 percent rating for unfavorable ankylosis of the dorsal spine.  Under Diagnostic Code 5289 a 40 percent rating is warranted for favorable and 50 percent for unfavorable ankylosis of the lumbar spine.  

Under Diagnostic Code 5291 10 percent is highest rating for limited dorsal spine motion and must be either moderate or severe.  Under Diagnostic Code 5292 limited lumbar motion warrants a 20 percent rating when moderate and a maximum 40 percent when severe. 

Under Diagnostic Code 5295 a lumbosacral strain characteristically painful motion warranted a 10 percent rating.  With muscle spasm on extreme forward bending with loss of lateral spine motion, a 20 percent rating is warranted.  When severe with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, a maximum 40 percent rating is warranted. 

New Spinal Rating Criteria

The old spinal rating criteria focused on subjective factors such as the degree of ankylosis or limitation of motion (old Diagnostic Code 5286 through 5289 and 5290 through 5292), except that other factors were taken into consideration for residuals of a vertebral fracture (formerly Diagnostic Code 5285) and sacro-iliac injury and weakness and lumbosacral strains (formerly Diagnostic Codes 5294 and 5295).  

The Diagnostic Codes for rating spinal disorders were also renumbered, including renumbering the Diagnostic Code 5292 for limited lumbar motion, as Diagnostic Code 5237 (lumbosacral or cervical strain) and Diagnostic Code 5242 (degenerative arthritis of the spine).  

The thoracolumbar and cervical spinal segments are rated separately except when there is unfavorable ankylosis of both spinal segments, i.e., the entire spine, which is rated as a single disability.  Note 6 to the General Rating Formula.  

The General Rating Formula provides ratings based on limited spinal motion in either forward flexion or the combined ranges of motion of a spinal segment, or for either favorable or unfavorable ankylosis, or with respect to the entire spine a loss of more than 50 percent vertebral body height due to vertebral fracture or muscle spasm and guarding.  

Note 2 to the General Rating Formula sets forth maximum ranges of motion of the spinal segments, which under Note 4 are measured to the nearest five (5) degrees, although a lesser degree of motion may be considered normal under the circumstances set forth in Note 3.  

Note 2 to the General Rating Formula provides that 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 sum of these is the combined range of motion, which for the thoracolumbar spine is 240 degrees.  

Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Note 5 of the General Rating Formula.  

A 20 percent rating is warranted for limited thoracolumbar motion when forward flexion is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion is not greater than 120 degrees (the maximum combined range of motion being 240 degrees); or if there is either (1) muscle spasm or (2) guarding severe enough to result in abnormal gait or abnormal spinal contour, e.g., scoliosis, reversed lordosis, or abnormal kyphosis.  

Scoliosis is "a lateral curvature of the spine."  Guetti v. Derwinski, 3 Vet. App. 94, 95 (1992).  "Lordosis is 'abnormally increased concavity in the curvature of the lumbar spinal column as viewed from the side'."  Cullen Shinseki, 24 Vet. App. 74, 75 (2010) (footnote 2) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1090 (31st ed. 2007)).  

A 40 percent rating is warranted for limited thoracolumbar motion when forward flexion is to 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine; 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine.  

Note 5 to the General Rating Formula provides that 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. 

Analysis

A VA examiner that evaluated the Veteran on multiple occasions has opined that the service-connected back disorder was apparently aggravated by two postservice factors.  One was a superimposed 1985 back injury and the second was the development of nonservice-connected COPD.  More recently, a VA physician has indicated that the back disability is principally related to the nonservice-connected COPD; however, as the back disability has existed since long before the development of COPD, it is clear that the COPD has been a cause of aggravation of the back disability by causing chest wall and spinal rigidity (although ankylosis is not shown).  Nevertheless, as to this, the 2007 addendum to the 2006 VA examination reflects that the Veteran's lack of endurance was due to his nonservice-connected COPD.  In fact, the evidentiary picture inescapably shows that over more than two decades there has been a gradual deterioration of the Veteran's physical abilities due primarily to his diminishing pulmonary disability, which in recent years has necessitated continuous oxygen therapy.  Further, it is clear that the COPD is due to the Veteran's continued and persistent smoking of cigarettes over a period of decades.  

There is an isolated notation on VA examination in February 1992 that the Veteran was completely disabled because of a back condition.  However, that examination focused on, and was limited to, his left ankle.  At that time no subjective complaints pertaining to the Veteran's dorsolumbar spine were recorded and no examination of his thoracolumbar spine was conducted and, so, there were no clinical findings relative to the dorsolumbar spine upon which an informed opinion could then have been made as to the severity of the service-connected dorsolumbar spine disability.  In fact, at the time the Veteran walked about easily and without a limp, although he was unable to elevate the left foot completely off the ground due to the service-connected left ankle fracture residuals, which are separately evaluated.  Also, impairment in the Veteran's balance and stability has been due to the separately rated left ankle disability and, more recently to a stroke, in either 2007 or 2008, and not to his service-connected back disorder.  

Addressing first the old spinal rating criteria, the current 40 percent rating, which has been in effect throughout the appeal, is higher than the maximum 10 percent rating assignable for limited motion of the dorsal (thoracic) spine, DC 5291, under the old spinal rating criteria.  

A 40 percent rating, under the old spinal rating criteria, was the highest, i.e., maximum, rating assignable for severe limitation of motion of the lumbar spine under DC 5292.  The dorsolumbar strain was assigned a 40 percent rating under the old spinal rating criteria under DC 5295 (lumbosacral strain).  This was also the highest rating assignable for a severe lumbosacral strain, an analogously for a dorsolumbar strain.  See 38 C.F.R. §§ 4.20 and 4.27 (addressing the rating assignable for an unlisted condition).  Under DC 5295 that 40 percent rating encompassed not only painful motion (ascribed to a 10 percent rating under DC 5295) but also any muscle spasm (encompassed in a 20 percent rating under DC 5295).  As to muscle spasm, although the Veteran has complained of muscle spasm, and indeed he testified that he had chronic muscle spasm of the back, this had never been found on any VA rating examination.  The 40 percent rating under DC 5295 also encompassed significant limitation of motion and his osteoarthritic changes of the spine, as well as any narrowing of the joint spaces.  Furthermore, there has never been actual ankylosis of the dorsal (thoracic) or lumbar spinal segments which would have warranted a higher rating under the old spinal rating criteria, nor has there ever been any evidence of a vertebral fracture, much less with loss of vertebral body height, which under DC 5285, would has warranted the addition of 10 percent to the 40 percent rating.  Also, it is beyond dispute that he has never had complete ankylosis of the entire spine. 

Alternatively, as for a rating in excess of 40 percent under the old IVDS rating criteria, such a 40 percent rating would have encompassed severe impairment from IVDS with recurring attacks and little intermittent relief.  To warrant the next higher rating, of 60 percent, he would have had to have had pronounced IVDS with symptoms compatible with sciatic neuropathy with characteristic pain, demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief.  However, while the Veteran has complained of pain radiating into one or both lower extremities; as noted, there is no evidence of muscle spasm at any time despite his complaints of such.  There is also no evidence of the absence of ankle jerks.  With respect to other neurological findings appropriate to the site of the disc disease, repeated examinations over the years have not found that he has had any sensory loss in a dermatomal pattern.  There is also no clinical evidence of significant loss of muscle strength, i.e., motor impairment, despite the Veteran's repeated complaints of weakness.  Likewise, there is no evidence of bowel or bladder symptoms stemming from the dorsolumbar strain which would be symptomatic of IVDS.  Stated in other terms, the clinical evidence reflects no findings on physical examinations that there were any neurological symptoms which occurred in an anatomical distribution as would be expected if the Veteran had active radicular symptomatology due to IVDS. 

Treating physicians over the years have never scheduled the Veteran for electrodiagnostic testing, such as electromyography or nerve conduction velocity studies, and none have ever suggested that there are any significant neurological finding of IVDS, as would be expected before such electrodiagnostic testing were scheduled.  

As to separate ratings for the orthopedic and neurological components under the old spinal rating criteria, the Board notes that involvement of the nerves of the lower extremities can cause impaired mobility of the feet.  See 38 C.F.R. § 4.124a, DCs 8520, 8521, 8522, 8523, 8524 (respectively, the sciatic, external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), and posterior tibial nerves).  However, the Board finds that while there is some impairment in the mobility of the Veteran's left foot and ankle, again, this is due to the service-connected left ankle fracture residuals which over the years has been separately rated on the basis of orthopedic, not neurologic, impairment, under DCs 5270 (ankle limitation of motion) and 5271 (ankle ankylosis).  Otherwise, except for his complaints of pain, he has no radicular symptoms of the sciatic or any other nerve of the lower extremities.  The recent 2011 examination confirms this, noting that based solely on a finding of pain, there was mild intermittent radiculopathy which affected the right lower extremity only with virtually no motor or sensory impairment of either lower extremity.  That examiner specifically concluded that there was no thoracolumbar IVDS, even though the Veteran then used a cane and electric scooter due to his back disability.  

There is no convincing evidence of chronic weakness of the back or lower extremities.  As to this, while VA examination in 1990 (prior to the 1991 Board denial of a rating in excess of 40 percent) indicated that the Veteran had some giving out of the knees, as a flexor response to back pain and although a private physician reported in 1995 that the Veteran, on muscle examination, was slightly weak for his age, that same private physician reported in 1997 that on motor examination the Veteran's lower extremities were normal.  

While the Veteran has used a cane, the evidence indicates that this is due to the separately rating left ankle fracture residuals.  There is evidence that, more recently, he has used a back brace and has used an electric scooter but this has only been since the progression, to a severe stage, of his difficulty breathing, i.e., shortness of breath and particularly exertional dyspnea, as a result of his pulmonary impairment from nonservice-connected COPD.  In fact, while he has complained of being unable to engage in any heavy lifting due to the back disability, at the 2004 VA examination he conceded that his complaint of being unable to engage in prolonged walking was due primarily to his nonservice-connected pulmonary condition, for which he was placed on oxygen therapy as early as 2003.  

The Board must emphasize that despite complaints of radicular pain, the evidence of record fails to establish that the Veteran has any neurological deficits of the lower extremities due to the service-connected dorsolumbar strain.  Thus the record is not clinically characteristic of both chronic orthopedic as well as chronic neurologic manifestations that can be separately rated under diagnostic codes for orthopedic and neurological disabilities.  In fact, neurologically the Veteran has at least adequate, if not good, muscle strength power in all major muscle groups of the lower extremities.  Sensation also remains intact in the lower extremities.  Hence, this element of the rating schedule may not applied in this case. 

Accordingly, a separate neurologic rating, for combination with current orthopedic manifestations, is not in order.  

In sum, there are insufficient neurological findings to warrant either assigning separate ratings for the orthopedic and neurologic components or for assigning a rating in excess of 40 percent under the old IVDS rating criteria; or for assigning a rating in excess of 40 percent for the orthopedic component under the old spinal rating criteria.  

Similarly, as to a rating under the new IVDS rating criteria, there is no evidence of any incapacitating episodes, i.e., bed rest prescribed by a physician, and, so, an increased rating under the new IVDS on that basis is not warranted.  

New Spinal Criteria

For the current criteria for orthopedic manifestations under the new General Rating Formula, considering pain and functional loss due to pain and limited flexion, the current 40 percent rating encompasses limitation of flexion of 30 degrees or less, or favorable ankylosis.  The evidence shows that there have been some changes in the contour of the spine.  For example, in 1994 the Veteran had mildly hyperlordotic curvature but in 2004 he had slight flattening of lumbar lordosis.  However, this is also encompassed in the 40 percent rating, inasmuch as a 20 percent rating contemplates an abnormal spinal contour even if due to guarding or muscle spasm.  However, the findings of range of motion do not more nearly approximate or equate to ankylosis in an unfavorable position.  While ankylosis in an unfavorable position may result in some symptoms, as listed in note 5 to the General Rating Formula for Diseases and Injuries of the Spine, there must first be fixation in either flexion or extension, and this is not shown to be the case.  

The new spinal rating criteria encompass symptoms such as pain (radiating or not), stiffness, and aching and takes those symptoms into account, removing any requirement that there be such symptoms for any particular rating.  68 Fed. Reg. at 51454 - 51455 (August 27, 2003).  

While Note 5 to the General Rating Formula for Disease and Injuries of the Spine indicates that in some circumstances difficulty breathing may be due to unfavorable ankylosis of the thoracolumbar spine, here there is no ankylosis, much less unfavorable ankylosis, of the thoracolumbar spine.  Otherwise, the Veteran can do normal activities of daily living, e.g., driving, bathing, and feeding without assistance.  

The Board has considered that 38 C.F.R. §§ 4.40, 4.45, and 4.59 contemplate disability with consideration of many factors, including: (1) less motion in different planes, due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (2) greater movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (3) strength or weakened movement (due to muscle injury, defective innervation from disease or injury of peripheral nerves; or divided or lengthened tendons, etc.); (4) endurance and excess fatigability; (5) coordination or incoordination, including impaired ability to execute skilled movements smoothly; (6) painful motion supported by adequate pathology & shown by the visible behavior on motion; (7) swelling; (8) deformity; (9) disuse either through atrophy, the condition of the skin, or absence of normal callosity; (10) instability of station; (11) disturbance of locomotion or normal speed of movement; (12) interference with sitting, standing and weight-bearing; (13) crepitation; and (14) sciatic neuritis.  

Nevertheless, for the above reasons, and after considering 38 C.F.R. §§ 4.40, 4.45, and 4.59, the preponderance of the evidence is against finding that a schedular rating in excess of 40 percent for the service-connected dorsolumbar spine is warranted at any time during this appeal.  

In making its determinations in this case, the Board has carefully considered the contentions of the Veteran and his attorney as well as the Veteran's statements and testimony with respect to the nature and severity of his service-connected disability.  The Board notes that his statements are competent to describe certain symptoms associated with the disability, i.e., his subjective complaints and his beliefs and opinions as to the impact of his back disability upon various aspects of his life.  The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability rating assigned.  Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue.  As such, while the Board accepts the lay statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected dorsolumbar strain.  

In reaching the aforementioned determinations, the Board has considered the holding in Mittleider v. West, 11 Vet. App. 181, 182 (1998), "when it is not possible to separate the effects of the [service-connected condition and [a] non-service-connected condition], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition."  As applied in this case, the Board has attributed all potential symptomatology to the service-connected dorsolumbar strain.  

In this regard, the Veteran has attributed, for compensation purposes, almost all of his overall functional impairment to his service-connected low back disability and his subjective complaints, unfortunately, are not in keeping with the clinical findings, e.g., his repeated complaints of weakness and fatigue, which are due to his nonservice-connected COPD.  

Overall, the disability of the Veteran's service-connected dorsolumbar strain is not demonstrated to be of such severity as to warrant a schedular rating in excess of 40 percent, under any applicable schedular rating criteria even when consideration is given to functional impairment due to pain and other factors.  

The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected dorsolumbar strain; however, the Board finds that while there has been some progression of the service-connected dorsolumbar strain, this has been primarily in accompaniment with the progression of his nonservice-connected COPD but, nevertheless, the progression of impairment of his service-connected dorsolumbar spine has not been sufficient to warrant a rating in excess of 40 percent under any applicable schedular criteria at any time during this appeal.  Therefore, assigning staged ratings for such disability is not warranted.  

Extraschedular

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 an extraschedular rating in the first instance.  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established schedular rating criteria.  Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009).  

If the schedular rating criteria reasonably describe a veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required.  Thun, Id.  

An extraschedular rating is applicable only as to individual service-connected disorders and not the collective or cumulative impact of multiple service-connected disorders.  See Johnson v. Shinseki, slip op., No. 10-1785 (Vet. App. Mar. 27, 2013) (en banc).  "Because the VA disability rating schedule is designed to consider the disabling effect of disabilities separately, no single DC provision will adequately assess the variety of symptoms involved with multiple service-connected disabilities."  Johnson v. Shinseki, No. 10-1785, slip op. at 10 (Vet. App. Mar. 27, 2013) (en banc).  Thus, as to the question of "whether [38 C.F.R.] § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis" the Court held that it did not.  Johnson v. Shinseki, No. 10-1785, slip op. at 4 (Vet. App. Mar. 27, 2013) (en banc) (noting that a concurring opinion in Brambley v. Principi, 17 Vet. App. 20, 27 (2003) that there should have been a determination of "whether the appellant's service-connected disabilities as a whole [sic] entitled [a veteran] to [an extraschedular rating] under § 3.321(b)(1)" had never been adopted by the Court and concurring opinions are not binding on the Court" (citing Maryland v. Wilson, 519 U.S. 408, 412-13).  Thus, the Board may not consider the impact of the Veteran's other service-connected disabilities, including his service-connected left ankle fracture residuals, in determining whether an extraschedular rating is warranted for the dorsolumbar strain.  

Likewise, caution must be taken not to conflate the criteria in 38 C.F.R. § 3.321(b) with the criteria for a total disability rating based on individual unemployability (TDIU) in 38 C.F.R. § 4.16(b) (2010).  The Court has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) and for purposes of a TDIU claim under 38 C.F.R. § 4.16."  Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  While the former requires marked interference with employment, the latter requires evidence of unemployability.  Id.; see also Thun v. Peake, 22 Vet. App. at 117 (extra-schedular consideration under § 3.321 may be warranted for disability that present a loss of earning capacity that is less severe than total unemployability).

The Veteran has repeatedly emphasized that he lost his job in 1985 after a work-related back injury.  Here again, the Board observes that the principal cause of the Veteran's deteriorating physical condition is the progressive impact over the years of his nonservice-connected COPD.  The Veteran has stated that he lost his job and was unable to return to work because of the severity of his service-connected dorsolumbar spine.  However, a careful review of the evidence shows that he was offered employment, by his employer after the 1985 injury, which would have been sedentary in nature but he rejected it.  He rejected it because he felt that he was not capable of even sedentary employment; but, the evidence shows that his opinion in this regard was not in keeping with a physician that felt that he was capable of such employment.  He also states that he was released from employment with the U.S. Post Office because the job he performed turn out to require physical activity of a greater extent than that of which he was capable and, subsequently, he applied again for employment with the U.S. Post Office but was rejected.  However, the record indicates that this was prior to obtaining employment which ultimately ended with his 1985 work-related back injury.  Moreover, in 1987, about two years after his 1985 superimposed back injury, a private physician felt that the Veteran was, in fact, capable of sedentary employment.  This conclusion was, on its face, reasonable in light of the Veteran's high school education which would allow him to perform more than manual labor.  Similarly, eight years later, that same physician reported in 1995 that the Veteran was capable of light duty.  While, of course, there was a change in the Veteran's ability to work, this was compensated by the 40 percent disability rating.  The service-connected low back disability, by itself, is not shown to have caused marked interference with employability which is not compensated by the 40 percent rating assigned.  

Comparing the Veteran's current symptoms and disability level to the Rating Schedule, the degree of functional impairment due to the dorsolumbar strain is contemplated by the Rating Schedule and the assigned schedule ratings are adequate.  By regulation, the rating assigned for the back disability must encompass the factors enumerated at 38 C.F.R. §§ 4.40, 4.45, and 4.59 (as listed above).  Specifically, a wide rating of signs and symptoms are contemplated in the applicable rating criteria, including pain, loss of motion, painful motion, muscle spasm, ankle jerks, and other neurological findings as to strength and sensory function.  

In fact, 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy.  Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing.  Also, 38 C.F.R. § 4.59 requires consideration of such matters as sciatic neuritis, unstable or malaligned joints, and crepitation.  

Of these, pain, painful motion, and limited motion are clearly documented; however, the evidence is unpersuasive as to the presence of muscle spasm, absent ankle jerks, significantly diminished strength or any sensory loss.  

More recent evidence indicates that it is a combination of impairment from the Veteran's service-connected dorsolumbar strain, his service-connected heart disease, and particularly the progression of his nonservice-connected COPD that has caused at least marked interference with this potential for employment.  This is in keeping with the evidence that he is now oxygen dependent and his recent hospitalizations have been for his nonservice-connected COPD.  Indeed, the evidence does not show that he has had any recent hospitalizations for treatment of his service-connected dorsolumbar spine and he has never required surgery for that disability.  Also, despite his complaints of pain of the back and legs, as well as weakness, there is no objective clinical evidence confirming that he has IVDS of such severity as to cause the degree of impairment of which he complains.  That is, there is are no physical examination findings of atrophy, as would be expected if he had the degree of weakness of which he complains, or physical examination findings of sensory impairment.  Also, in the absence of such findings, and in light of the evidence that his gait has been impaired due to the service-connected left ankle fracture residuals and that his inability to stand for extended periods of time or walk any significant distance is also due, at least in part, to the nonservice-connected COPD, the Board can not conclude that the schedular rating criteria are inadequate.  This is particularly true when, as here, higher schedular ratings are possible; particularly if the Veteran in the future actually develops objectively confirmable symptomatology of IVDS which would allow for a higher rating on the basis of either combining the orthopedic component with any possible neurological component or, alternatively, on the basis of IVDS under DC 5243.  

Thus, no referral for extraschedular consideration is required.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009).  

TDIU prior to April 17, 2003

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable.  Marginal employment shall not be considered substantially gainful employment. For purposes of this section, 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.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16(a).  

Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability.  38 C.F.R. § 4.17(a). 

A veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment.  With amputations, sequelae of fractures and other residuals of traumatism shown to be of static character, a showing of continuous unemployability from date of incurrence, or the date the condition reached the stabilized level, is a general requirement in order to establish the fact that present unemployability is the result of the disability.  However, consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability.  38 C.F.R. § 4.18.  

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating.  Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension.  38 C.F.R. § 4.19.  

The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C.A. § 5110(a). 

Similarly, the implementing regulation states that the effective date of an award shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service.  See 338 C.F.R. § 3.400 (2012).  An exception to this general rule occurs in a claim for increased compensation.  See 38 C.F.R. § 3.400(o)(1).  An effective date for such a claim may date back as much as one year before the date of the formal application for increase if it is "factually ascertainable that an increase in disability had occurred" within that timeframe.  See 38 U.S.C.A. § 5110(b)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997); 38 C.F.R. § 3.3400(o)(2).  A claim for a rating of TDIU is an increased-rating claim that generally follows the effective date rules of 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400.  See Hurd v. West, 13 Vet. App. 449, 451-52 (2000); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007).  

The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose, 4 Vet. App. at 363.  

The Veteran is service-connected for a chronic dorsolumbar strain, rated 40 percent since January 13, 1992; CAD, status post MI times two, rated 10 percent disabling from October 3, 1994, and as 30 percent since June 20, 1999; status post left ankle fracture rated 10 percent from January 14, 1992, 20 percent from April 17, 2003, and 30 percent from July 20, 2006; residuals of a left wrist fracture, rated noncompensably disabling from October 3, 1994 and as 10 percent disabling from November 1, 2010; and hearing loss of the left ear, evaluated as noncompensably disabling since June 11, 1996.  These resulted in a combined disability rating of 50 percent from January 14, 1992; 60 percent from June 30, 1999; and 70 percent from April 17, 2003.  He has been assigned a TDIU rating since April 17, 2003. 

In this case, an October 1990 of a rating decision denied a TDIU rating.  The Veteran was notified by RO letter in October 1990 of that rating decision and it is not contended that he was not so notified.  The Veteran did not appeal that decision.  That decision is final in the absence of clear and unmistakable error (CUE).  38 U.S.C.A. §§ 5108, 7105(c) (West 2002) and 38 C.F.R. §§ 3.104(a), 3.105(a), 20.1103 (2012).  That decision is a bar to an effective date prior to October 1990 in the absence of CUE in that rating decision.  In this case, there is no allegation of CUE in the October 1990 RO denial of TDIU.  Thus, there is no possibility that a TDIU rating could be assigned retroactively back to the date that the states he lost his job from a work-related injury in 1985.  

Additionally, the Veteran did not meet all the requirements of 38 C.F.R. § 4.16(a) for a TDIU prior to April 17, 2003, i.e., when a Veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided [sic]" that the Veteran meets the schedular limitations imposed by § 4.16(a) (... if there is only one [service-connected] disability, this disability shall be ratable at 60 percent or more; and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more" (emphasis added).)   

Recent correspondence from the Veteran reflects his belief that he met the schedular criteria in 38 C.F.R. § 4.16(a) when the ratings for his service-connected disabilities are added together.  However, § 4.16(a) specifically requires that the service-connected disabilities be combined under the combined ratings table at 38 C.F.R. § 4.25, and not added.  

The Board observes that April 17, 2003, is the earliest date as of which the Veteran met the percentage requirements of 38 C.F.R. § 4.16(a), i.e., a single disability rated 40 percent with sufficient other service-connected disability rating which combine to 70 percent.  In this regard, in some circumstances, the ratings for service-connected disabilities may be combined to met either the 40 percent or the 60 percent requirement in § 4.16(a).  Here, none of the disabilities result from a common etiology or single accident and they were not incurred in action or as a prisoner-of-war.  For the period prior to April 17, 2003, the dorsolumbar strain and the left ankle fracture residuals both affect a single bodily system, i.e., the orthopedic.  However, when combined the 40 percent rating for the dorsolumbar strain and the 10 percent rating for left ankle fracture residuals which was in effect from January 14, 1992, until April 16, 2003, resulted in a rating of only 46 percent and not the required 60 percent.  

In other words, it is not enough that the Veteran was unemployed prior to April 17, 2003; rather, for an effective date prior thereto he must also have first met the schedular criteria in 38 C.F.R. § 4.16(a).  In other words, to warrant a TDIU a Veteran must not only be incapable of substantial gainful employment, but he must also meet the criteria of 38 C.F.R. § 4.16(a).  Indeed, 38 C.F.R. § 4.16(a) specifically states that a TDIU rating may be assigned when both the schedular criteria therein are met and the Veteran "is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities."  Since it is irrefutable that the Veteran first met the schedular criteria in 38 C.F.R. § 4.16(a) on April 17, 2003, an effective date for a TDIU prior thereto is prohibited because it is factually ascertainable that he first met all the criteria of 38 C.F.R. § 1.46(a) on that date.  

Extraschedular TDIU

There remains the question of whether the case should be referred, under 38 C.F.R. § 4.16(b), for possible extraschedular TDIU entitlement prior to April 17, 2003.  

It is the established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section.  The rating board will include a full statement as to a veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.  38 C.F.R. § 4.16(b).  

The Veteran's past civilian work experience has been as a carpenter.  However, he has a high school education which would qualify him for clerical and sedentary employment.  To some extent, he has more than a high school education, by virtue of correspondence school which he had related was the equivalent of two years of college education.  In fact, as noted above, he was offered employment, by his employer after the 1985 injury, which would have been sedentary in nature but he rejected it.  He rejected it because he felt that he was not capable of even sedentary employment; but, the evidence shows that his opinion in this regard was not in keeping with a physician that felt that he was capable of such employment.  He also states that he was released from employment with the U.S. Post Office because the job he performed turn out to require physical activity of a greater extent than that of which he was capable and, subsequently, he applied again for employment with the U.S. Post Office but was rejected.  And, according to his 1984 VA Form 21-8940, all this was prior to his 1985 work-related back injury.  Since his 1985 work-related back injury it does not appear that he has actively sought employment (particularly in light of his contradictory responses in his 1990 VA Form 21-8940 as to whether he had attempted to obtain employment).  Moreover, in 1987, about two years after his 1985 superimposed back injury, a private physician felt that the Veteran was, in fact, capable of sedentary employment.  This conclusion was, on its face, reasonable in light of the Veteran's high school education which would allow him to perform more than manual labor.  Indeed, a private physician reported, in 1995, that the Veteran had done unpaid light carpentry work.  Again, as recently as the July 2006 VA examination it was opined that the Veteran was capable of sedentary work, were it not for his COPD (for which he is not service-connected and, so, this component of his overall disability may not be considered in a TDIU context).  

Prior to April 17, 2003, as well as after, there was no evidence that the Veteran's service-connected hearing loss was productive of any significant disability, particularly with improvement via the use of hearing aid and, hence, it has continuously been assigned a noncompensable rating.  As to his left wrist fracture, he is right handed and while it would significantly impair him, together with the service-connected dorsolumbar strain and heart disease, the combined effect of all of his service-connected disabilities is not shown to have precluded sedentary employment, such as in an office setting.  Moreover, his recent hospitalizations have been for his nonservice-connected COPD and while his COPD was not as impairing prior to April 17, 2003, it is expected to have still imposed some limitations, particularly shortness of breath upon exertion.  This is shown by his having been hospitalized for pulmonary problems as early as 1986 and more recently by the observation of a VA examiner that the Veteran by 2004 was dependent upon oxygen therapy via a cannula.  
Also as noted above, the opinion expressed on VA examination in 1992 that the Veteran could not work due to his service-connected dorsolumbar strain was made in conjunction with an official rating examination of the severity of his service-connected left ankle fracture residuals and there was no actual physical examination findings or other clinical evidence reported which would indicate that the opinion was an informed one.  

The Veteran's educational attainment shows his ability to perform at least clerical work, even if he has not avidly sought such work, and as such fails to demonstrate he was unemployable or no more than only marginally employed due to his service-connected disabilities prior to April 17, 2003.  

For these reasons, the Board concludes the record establishes that prior to April 17, 2003, the Veteran's service-connected disabilities alone did not prevent him from securing or following a substantially gainful occupation and, so, referral of the case for consideration of an extraschedular TDIU rating prior thereto is not warranted.  

Since, for these reasons, the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  







ORDER

A rating in excess of 40 percent for chronic dorsolumbar strain is denied.  

An effective date prior to April 17, 2003, for a TDIU is denied.  



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs