Citation Nr: 1326713 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-03 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a higher evaluation for degenerative arthritis of the lumbar spine (claimed as lower and upper back condition), rated at 20 percent disabling prior to August 13, 2009, and at 40 percent since then. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to August 13, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the case was later transferred to the RO in Montgomery, Alabama. In April 2011, the Veteran testified at a hearing held at the RO before the undersigned Acting Veterans Law Judge (VLJ) of the Board (also referred to as a Travel Board hearing). Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. During the hearing, the presiding VLJ noted the basis of the prior determination and the elements of the claims that were lacking to substantiate it. The presiding VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might help to substantiate the claims. Neither the Veteran nor her representative asserted during or since the hearing that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing. The hearing focused on the elements necessary to substantiate the claims. Consistent with Bryant, the presiding VLJ complied with the duties set forth in section 3.103(c)(2) such that the Board may now adjudicate the claims. Through a September 2011 decision, the Board denied a claim then on appeal for service connection for a nerve disorder associated with the hands. The three remaining claims of service connection for a nerve disorder associated with the feet, an increased rating for a low back disorder, and a TDIU were remanded to the RO (via the Appeals Management Center (AMC)) for further evidentiary development. Thereafter, the RO/AMC issued a July 2012 rating decision which in part, granted service connection for right and left lower extremity radiculopathies, secondary to a lumbar spine disorder, both rated at 10 percent effective March 1, 2011, and 40 percent from October 20, 2011. The Veteran has not appealed from the initial ratings or effective dates assigned therefrom, and hence these claims have been resolved. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Moreover, the RO/AMC's decision increased from 20 to 40 percent the evaluation for lumbar spine degenerative arthritis, effective August 13, 2009. Notwithstanding this increased in compensation, the claim for a still higher schedular evaluation during all relevant time periods remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). As a further adjudicative action undertaken by the RO/AMC, a TDIU was granted effective August 13, 2009. Since however, a TDIU claim has been pending since May 2005, there remains for adjudication the issue of TDIU entitlement in advance of August 13, 2009. This remaining issue on appeal has accordingly been so captioned on the title page above. FINDINGS OF FACT 1. For the time period prior to August 13, 2009, the Veteran did not manifest forward flexion of the thoracolumbar spine 30 degrees of less. 2. Since August 13, 2009, she has not manifested any form of spinal ankylosis. Throughout, there have not been any confirmed incapacitating episodes of Intervertebral Disc Syndrome (IVDS). 3. Prior to August 13, 2009, the Veteran was not precluded from participating in substantially gainful employment as a consequence of service-connected disability. CONCLUSIONS OF LAW 1. The criteria are not met for a higher evaluation for degenerative arthritis of the lumbar spine, rated at 20 percent disabling prior to August 13, 2009, and at 40 percent onwards. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5242 (2012). 2. The criteria are not met to establish a TDIU prior to August 13, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Claimant The Veterans Claims Assistance Act, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2012). The RO has informed the Veteran of what evidence would substantiate her claims for increased rating and TDIU through VCAA correspondence dated in June 2005 that notified him as to each element of satisfactory notice. The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, including that VA would undertake reasonable measures to assist in obtaining further VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information was timely sent because it was issued prior to the RO rating decision adjudicating the increased rating claims being decided, and therefore met the criteria for timely notice. See Pelegrini II; see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The RO (including through the AMC) has taken appropriate action to comply with the duty to assist the Veteran through obtaining VA and private outpatient treatment records. The Veteran has also undergone several VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). The RO/AMC substantially complied with the terms of the prior Board remand by requesting the Veteran's authorization to obtain any additional relevant private treatment records (he did not respond with any further information), obtaining more recent VA medical records, and arranging for updated VA examinations. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has provided lay statements in support of her appeal, and presented testimony at a Travel Board hearing. The record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, the record has been fully developed, and it is difficult to discern what additional guidance VA could provide to the Veteran regarding what further evidence she should submit to substantiate her claim. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Background and Analysis I. Increased Rating for Lumbar Spine Disorder Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran filed the instant claim for increased evaluation for degenerative arthritis of the lumbar spine in May 2005. At the time, the back disorder under evaluation was rated at 20 percent. During pendency of the appeal, the RO/AMC by its July 2012 rating decision increased to 40 percent corresponding evaluation, effective August 13, 2009, all under 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis of the spine. The Board will consider below the potential entitlement to any higher disability evaluation both prior to and since August 13, 2009. Under applicable rating criteria, this disability is to be evaluated in accordance with VA's General Rating Formula for Diseases and Injuries of the Spine. This rating formula provides for the assignment of a 10 percent rating when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent rating is for assignment upon a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher available 40 percent rating is made for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire 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 (0 degrees) always represents favorable ankylosis. The evidence in this case reflects that the Veteran underwent VA Compensation and Pension examination for general medical evaluation in July 2005. She then reported that her back pain flared up every day and she had to lie down or change position. She believed that she could only sit up for two to three hours without changing her position because of back pain. Medication did help during flare-ups, as did a TENS unit. Upon physical examination, with range of motion studies, the Veteran was able to forward flex her lumbar spine 80 degrees when she encountered pulling in her back, which continued up to 90 degrees; laterally flex to 40 degrees bilaterally; laterally rotate 35 degrees bilaterally. There was no additional limitation with repetitive motion. Reflexes were normal. She had no symptoms in a spinal nerve distribution in either leg. She had no foot drop. No deficits were identified. An x-ray of the lumbar spine showed mild spondylosis, as did an x-ray of the thoracic spine. The diagnosis was in pertinent part, mild chronic lumbar strain which did not require daily medications, and did involve flare-ups two to three times per week. The Veteran next underwent VA examination in August 2009. She had undergone MRI of the lumbar spine in December 2006 which showed narrowing of the lower two intervertebral spaces with some desiccation and degeneration of the disks at those levels, and minimal midline bulging of the disk at the L4-L5 level. She reported low back pain since 2003, with shooting pain down the legs. She did not wear any back brace. Physical examination indicated tenderness over the lumbar spine and lumbar paraspinals without spasm. Range of motion consisted of flexion to 40 degrees, extension to 10 degrees, lateral flexion to 10 degrees bilaterally, and rotation to 0 degrees bilaterally. During repetitive movements, she moved very little and complained of pain, and there was no change in the range of motion. With straight leg raising with any movement of the leg she complained of back pain. On VA re-examination of June 2010, physical examination of the thoracolumbar spine revealed that palpation of the spine was normal. Forward flexion was to 70 degrees, with onset of pain at 35 degrees; extension was not assessed because of pain and "feeling numb"; lateral flexion and lateral rotation also were not assessed because of symptomatology. There were no deficits with neurological function, including any sensory deficits or limited reflexes. The diagnosis was, in pertinent part, mild osteoarthritis lumbar spine, due to aging. Upon more recent examination of November 2011, pursuant to Board remand directive, the applicable diagnosis was initially confirmed as arthritis lumbar spine, and degenerative disc disease L4-5, L5-S1. Objective range of motion findings revealed forward flexion to 20 degrees; extension to 10 degrees; right lateral flexion to 15 degrees, left lateral flexion to 10 degrees; lateral rotation bilaterally 10 degrees. There was no further lost motion on repetitive use testing, other than right lateral flexion limited to 10 degrees. There was functional loss comprised of less movement than normal, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing or weightbearing. There was tenderness to palpation. There was no guarding or muscle spasm of the thoracolumbar spine. Straight leg testing was normal. IVDS was present, but no incapacitating episodes were documented. The Veteran reportedly constantly used a cane for locomotion, and occasionally used a walker. It was further indicated that the Veteran was unable to move around when her back was in pain as she must lay down and rest. It was also documented by the examiner that poor effort was noted on range of motion assessment. The degree of functional impairment attributable to the low back was considered moderate, as were associated neurologic manifestations of lumbar radiculopathy. Having reviewed the above clinical evidence in light of pertinent applicable rating criteria, the Board concludes that continuance of the existing disability compensation scheme for the Veteran's lumbar spine degenerative arthritis is warranted. For the initial time period under review, from prior to August 14, 2009, the existing 20 percent disability rating continues to best approximate the overall severity of service-connected disability. The rating criteria is fairly direct in requiring a showing of the following for the next higher 40 percent evaluation -- forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a (General Rating Formula for Diseases and Injuries of the Spine). Essentially, neither requirement is objectively shown. In the only source of evaluative findings available, the July 2005 VA examination, the Veteran had forward flexion of the thoracolumbar spine to 80 degrees, which is essentially near normal range of motion. There was no further diminution of motion due to pain, fatigue, weakness or other recognized form of functional loss, as must be duly considered pursuant to DeLuca v. Brown, and 38 C.F.R. §§ 4.45 and 4.59. In this situation, the Veteran maintained well in excess of that which would have qualified her for an increased rating based on limitation of motion. Nor, for that matter, was there any form of joint ankylosis, which by its very definition constitutes the total absence of mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) (both indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). The Board recognizes that there was a substantial gap between the July 2005 VA examination cited above, and August 13, 2009; however, the Board's review is effectively constrained by the record before it. In any event, the July 2005 showing was of near normal motion, and thus it seems unlikely that there would have been a drastic decrease to as little as 30 degrees forward flexion in such a short time span as a year or two. Accordingly, the Board is without substantiating evidentiary findings to award any evaluation in excess of 20 percent. Turning to the time period from August 13, 2009, the evidence likewise does not support assignment of higher than the existing 40 percent. Any award of an increased evaluation by necessity, under the VA rating schedule, would require evidence of ankylosis in some form. See again, 38 C.F.R. § 4.71a. Whereas during the relevant timeframe, the Veteran's condition worsened to some degree, she still retained a measurable degree of joint mobility. Even at her worst objectively measured movement, on examination of November 2011, the Veteran retained 20 degrees of forward flexion. Thus, by definition ankylosis did not exist, and a higher rating cannot be substantiated. The Board has also considered alternative rating criteria, but finds no further basis for increased evaluation. On this subject, whereas the Veteran may have some symptoms of Intervertebral Disc Syndrome, she has not been conclusively noted to have incapacitating episodes of said condition (i.e., involving physician prescribed bedrest), which are the bases for rating IVDS under Diagnostic Code 5243. While at the Board hearing the Veteran made referenced to prescribed bedrest, it was recommended that she provide written proof of this from her private treatment provider, and no further documentation was forthcoming. Nor were any incapacitating episodes specifically indicated on the subsequent VA examination of October 2011. Thus, there is no basis to consider an increased rating under the IVDS rating criteria. To the extent, likewise, that the Veteran has separate compensable neurological impairment to the lower extremities arising out of the underlying service-connected back disability, this has already been recognized through prior awards for separate compensation for bilateral lower extremity radiculopathy. Meanwhile, aside from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations also has been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's low back disability presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and she does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon limitation of motion with associated pain and/or discomfort fairly accounts for nearly all of the Veteran's symptoms as presented, including from her descriptions upon VA examination and on other occasions. To the extent the Veteran has any distinctly ratable neurological impairment, this has been recognized through separate compensable evaluations for her right and left side lower extremity radiculopathy. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. The Board therefore is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for consideration of an extraschedular evaluation. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claim for a higher rating for degenerative arthritis of the lumbar spine during all relevant timeframes. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. TDIU Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, where the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be ratable at 60 percent or more. Provided instead, there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16. If the claimant does not meet the minimum percentage rating requirements of section 4.16(a) for consideration of a TDIU, he or she may still be entitled to the benefit sought where the circumstances of the case present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant a TDIU on an extra-schedular basis. 38 C.F.R. §§ 3.321(b)(1), 4.16(b). While the procedures for assignment of a total disability rating on an extraschedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extraschedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996). See also Floyd v. Brown, 9 Vet. App. 88, 95 (1995). The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether the veteran is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor which takes the claimant's situation outside the norm of such a case, since the VA rating schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. 4.1, 4.15. Other factors that receive consideration in determining whether a veteran is unemployable include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16(b). See also Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). By comparison, the impact of any nonservice-connected disabilities, or advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In addition, "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the Court has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), citing to VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (December 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). See also Ferraro, 1 Vet. App. at 332 (determining that substantially gainful employment suggests "a living wage"). In this particular case at hand, the Veteran is trying to establish entitlement to a TDIU prior to the currently assigned effective date of August 13, 2009. Upon her May 2005 VA Form 21-8940 (Formal Application for TDIU) the Veteran indicated having last worked in 1991 as a security guard. She listed having completed a high school education and three years of collegiate level education. On a July 2005 VA general medical examination, the Veteran reported in relevant part that she did not believe she was able to work because of back problems, a condition which had also impacted her ability to carry out household activities and routinely lift heavy objects. According to the Veteran, she took Depakote for "seizures" for six years. Apparently, these were very brief episodes. One nurse who saw a seizure said that it lasted eight-and-a-half seconds. The Veteran did not report any tonic or clonic movement. She said that when she had a seizure, it "looks like I am asleep." She previously tried to refill her Topamax for treatment purposes, but was told that she did not have seizures and they would not give her any medication. She had not been on any medication for four years. The VA examiner could not determine that she had any EEG evidence of any seizure activity. The Veteran believed that her seizures were related to stress and occurred three to four times a month. A physical examination was completed. The diagnoses were mild chronic lumbar strain that did not require daily medications; no clinically significant seizure disorder diagnosed; migraine headaches; no peptic ulcer disease; injury to the right knee requiring surgery, with moderate chronic knee strain; normal examination of the right elbow; and no symptoms of radiculopathy. The VA examiner then expressed the opinion that the Veteran's chronic right knee strain, combined with her obesity, would make manual labor difficult. Further opined was that no medical condition was identified at this visit which would prevent sedentary employment. In his undated correspondence received May 2007, J.T.N., private chiropractor, indicated that in February 2004, the Veteran presented with chief complaints of neck pain with numbness bilaterally in the upper extremity, migraines, low back disorder, hypertension, gall bladder removal, duodenal ulcers, and uterine fibroids. She had had a right medial meniscectomy whereupon her right peroneal nerve was damaged surgically causing some difficulty in ambulation. Also, degenerative disc disease was present from L4-S1. According to the chiropractor, it was his opinion that the Veteran had such limitations physically that she was unemployable. She could not perform much in lifting tasks, and no bending, but could do some tasks that involved light work and mostly mental type work. It was for this reason that the chiropractor recommended that the Veteran learn some sort of trade that did not involve much physically. It was believed that she was unemployed but was physically capable to return to school for any training but could only do so if assisted. Moreover, while technically outside the rating time period under consideration (since a TDIU was already granted as of this point in time), the report of a June 2010 VA general examination is still highly instructive. Following an in-depth physical exam, the diagnoses were indicated as psychogenic seizures (no neurologic seizure disorder), somatoform disorder, psychogenic pain syndrome, mild osteoarthritis lumbar spine, osteoarthritis right knee, tension headache, psychogenic numbness both upper and lower extremities. The VA examiner further opined to the effect that review of medical records showed multiple symptoms with minor objective abnormality found on testing. The Veteran's reported pain had consistently been out of proportion to objective results from x-rays and MRIs. The examiner further observed that the Veteran had been misdiagnosed with a neurologic seizure disorder and treated with epileptic medications, when in fact she had no such condition as indicated by EEG findings. The VA examiner then opined that it was at least as likely as not that functional limitations related to her obesity and osteoarthritis in her knees and spine would interfere with her ability to perform manual labor. However, although the Veteran sincerely believed that she had functional limitations which precluded employment, there was no objective evidence to support the existence of any functional limitation that would interfere with her ability to obtain and maintain sedentary employment. Notably, also, the report of the more recent October 2011 VA examination observed that the Veteran's ability to secure or follow a substantially gainful occupation as a result of her psychogenic seizures as well as her moderate lower back condition would be impaired to a moderate degree. Based on a thorough review of the foregoing, the Board concludes that the criteria for assignment of a TDIU have not been met. As a preliminary concern, the Veteran prior to August 13, 2009 did not meet the schedular requirements for a TDIU. She had been awarded service connection for epilepsy, petit mal, akinetic type, then rated at 20 percent; degenerative arthritis of the lumbar spine, then rated at 20 percent; instability of the right knee, rated at 30 percent; and chondromalacia and degenerative joint disease, right knee, rated at 20 percent. The combined rating for service-connected disability (under the combined rating table, at 38 C.F.R. § 4.25) was 60 percent as of then. However, by virtue of these assigned disability percentages, the Veteran did not have one disability rated at 60 percent (considering also that the disabilities comprising his combined 60 percent rating were, with limited exception, of differing etiologies), or a single disability rated at 40 percent with combined disability at 70 percent. Therefore, the initial schedular criteria were not met under 38 C.F.R. § 4.16(a). This notwithstanding, the Board may still consider potential entitlement on an extraschedular basis under 38 C.F.R. § 4.16(b). The dispositive question becomes one of whether the Veteran was rendered incapable of securing and maintaining substantially gainful employment as the consequence of service-connected disability prior to August 13, 2009. On this matter, however, the evidence is in near universal agreement from evaluating treatment providers that the Veteran retained the capacity for carrying out sedentary work-related tasks. Given the Veteran's occupational background, educational attainment, and retained functional capacity, she was not rendered unemployable. The only finding not in total agreement comes from the October 2011 VA examiner (albeit after the fact) indicating there was "moderate" impact of service-connected disability upon employment. Nonetheless, even this assessment leaves open the possibility of retained employment capacity. In any event, the Board places the most emphasis on the pre-August 13, 2009 assessments of record, which as stated, did not rule out or preclude the capacity for continued employment as of then. Consequently, the claim for a TDIU prior to August 13, 2009 is being denied. As the preponderance of the evidence is unfavorable, the benefit-of-the-doubt doctrine is inapplicable. See again, 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER A higher evaluation for degenerative arthritis of the lumbar spine (claimed as lower and upper back condition), rated at 20 percent disabling prior to August 13, 2009, and at 40 percent thereafter, is denied. A TDIU prior to August 13, 2009 is denied. ____________________________________________ KRISTI L. GUNN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs