Citation Nr: 1327919 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 09-25 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to November 29, 2012, and in excess of 20 percent thereafter, for service-connected chronic lumbosacral strain. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to January 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2008 and June 2008 rating decisions, which continued a 10 percent evaluation for service-connected chronic lumbosacral strain. In October 2009, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. The Veteran was offered another and he testified a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in June 2012. Transcripts of both hearings are associated with the claims file. In October 2012, the Board remanded the Veteran's claim for further development. The case has since been returned to the Board for adjudication. While on remand, the RO increased the disability rating for the Veteran's lumbar spine disability to 20 percent, effective November 29, 2012. Although this was a partial grant of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the rating assigned for his lumbar spine disability and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. Prior to August 11, 2010, the Veteran's low back disability was manifested by forward flexion of greater than 30 degrees, but less than 60 degrees; combined range of motion of the thoracolumbar spine of less than 120 degrees; but no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes of at least two weeks, but less than four weeks in the past 12 months. 2. Beginning August 11, 2010, the Veteran's low back disability was manifested by forward flexion of less than 30 degrees, but without evidence of ankylosis of doctor-prescribed bed rest last more than 6 months in the last 12-month period. 3. The Veteran's radiculopathy of the bilateral lower extremities was not manifested prior to November 29, 2012, and from that time, it was no more than moderate in nature. 4. Prior to November 29, 2012, the Veteran failed to meet the schedular requirements for TDIU, and his service-connected disabilities did not preclude him from obtaining and retaining substantially gainful employment. 5. With full consideration of the Veteran's educational and occupational background, the evidence of record supports a finding that his service-connected disabilities combine to render him unable to secure and follow substantially gainful employment, beginning November 29, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent, prior to August 11, 2010, for a low back disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012). 2. The criteria for a 40 percent rating, but no higher, beginning August 11, 2010, for a low back disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012). 3. Beginning November 29, 2012, the criteria for a 20 percent disability rating for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 4. Beginning November 29, 2012, the criteria for a 20 percent disability rating for radiculopathy of the left lower extremity have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 5. Prior to November 29, 2012, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). 6. Beginning November 29, 2012, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. 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, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that 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 the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in November 2007 and February 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. In April 2010, the Veteran submitted two VA Forms 21-4142 (consent to release information to VA) for "Vassar Brothers Hospital" and "St. Francis Hospital." He did not, however, include the address for these hospitals. In May 2010, the RO sent the Veteran a letter requesting that he submit the complete addresses of these hospitals so VA may obtain these records. To date, he has not responded to this request. As such, the Board finds that adequate attempts to retrieve these outstanding treatment records were made, and any further attempts to obtain these records would be futile. The Veteran has at no time referenced any additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The RO provided the Veteran an appropriate VA examination most recently in November 2012. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living and employment. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the November 2012 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2012); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's lumbar spine disability has evaluated under the general rating formula for disease and injuries of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 The general rating formula is as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: Unfavorable ankylosis of the entire spine ............................100 Unfavorable ankylosis of the entire thoracolumbar spine......50 Unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine...............................................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine..........................................................30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.................20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height..................................................10 Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2012). The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Factual Background The Veteran contends that his service-connected lumbar strain warrants rating in excess of 10 percent prior to November 29, 2012, and in excess of 20 percent thereafter. By way of background, service connection for a lumbar strain was awarded in a May 1973 rating decision. He was assigned a 10 percent rating, effective January 1973. He filed his most recent request for increase in October 2007. Following his request for increase, the Veteran was scheduled for VA examinations twice. In December 2007, his examination was cancelled because he failed to report. Attempts were made to contact the Veteran prior to his February 2008 VA examination. The RO left messages for the Veteran, with no response, and eventually, his phone number was not in service. The Veteran never responded to the letter sent to him regarding the examination date. Prior to his November 2012 VA examination, the Veteran sought treatment at the VAMC. He complained of a long history of low back pain, and was treated with injections. He was diagnosed as having lumbago secondary to degenerative disc disease with muscle spasm. He has continued VA rheumatology treatment, as well as chiropractic care. In addition to low back pain, he has reported intermittent radiation of pain into the left buttock. In a February 2009 VA treatment record, the Veteran was noted to have a history of chronic low back pain. He reported a significant decrease in pain after each chiropractic treatment, but still has frequent exacerbations of pain. The examiner indicated that straight leg testing was negative, and there were no signs of lumbar radiculopathy. In an August 2009 chiropractic treatment note, the Veteran had reported recently being hit by a car causing a break to his sternum. The Veteran reported left hip pain that radiates into the thigh. The more active he is, the more pain. He denied any numbness or tingling in the legs, and denied any bowel or bladder loss. The Veteran was afforded a VA spine examination in August 2010, during which he reported chronic pain. He described this pain as aching (7/10 severity) in his lower back and it could radiate into his hips. He states that pain is worse with heavy lifting (50lbs), bending, and sitting/standing for more than 30 minutes. He stated that in cold/damp weather his pain level will increase to 10/10, and this occurs least once a week and can last most of the day and sometimes into the next day. He uses Motrin as needed, but rest and an electrical stimulator also help. In the past, the Veteran has received cortisone shots with some relief and then he switched to botox with some relief. The Veteran performs stretching exercises every morning and it seems to help his symptoms. The examiner described the severity of the Veteran's symptoms as moderate to severe, but he has not had any incapacitating episodes in the past 12 months. He noted that the Veteran did not have any additional limitation of motion or functional impairment during a flare-up period. However, the Veteran endorsed stiffness, fatigue, spasms with flare-ups, weakness, decreased motion, numbness on the lateral aspect of the hips with radicular pain, paresthesias in his back, but denied leg or foot weakness, bladder complaints, bowel complaints, or erectile dysfunction. The Veteran does not use any walking or assistive devices, but he uses a back brace at work. He can walk up to 10 minutes before pain starts. He is not unsteady, nor does he have a history of falls. The examiner noted that the Veteran works full time and is able to perform all his activities of daily living. The Veteran stated that pain is frequently aggravated by walking on hard surfaces, prolonged sitting/standing (greater than 10-15 minutes), bending, lifting (greater than 10 lbs). He indicated that these activities will bring sharp and radiating pain (10/10), depending upon activity level. He stated that this occurs almost daily, and lasts a few minutes to a few hours depending upon whether it goes away with rest. He states he does not take medication because it does not help. When pain is this bad he just "lays on floor" or rests, and he states he does a few times per week for 15 minutes to 1 hour. The Veteran described incapacitating episodes where he must lay on hard surface/ resting for a day or so, two to three times per month. Range of motion testing revealed forward flexion from 0 to 60 degrees, with pain at 30 degrees; extension from 0 to 20 degrees with pain beginning at 10 degrees; and bilateral flexion and bilateral rotation to 30 degrees in all directions, with pain at 30 degrees. The Veteran had painful motion, spasm, tenderness, radiation , and guarding. The examiner indicated that the Veteran has muscle spasm, guarding, and localized tenderness in the lumbar spine, but not severe enough to result in abnormal gait, abnormal spinal contour, reversed lordosis, or abnormal kyphosis. The examiner found no evidence of ankylosis, but noted that the Veteran flattened lordotic curve. Sensory examination, motor examination, muscle strength, and reflex testing were all within normal limits. The examiner concluded that the Veteran did not have additional functional loss or loss of range of motion due to pain, fatigue, weakness, lack of endurance, or incoordination. Additionally, the Veteran did not have additional loss of range of motion following repetitive testing. The examiner diagnosed the Veteran as having degenerative disc disease of the lumbosacral spine with radiculopathy. She opined that the Veteran's degenerative disc disease with radiculopathy is less likely than not related to his service-connected low back strain from 28 years ago, and more likely related to his work history as a grounds keeper and/or due to his post-service skydiving accident in 1975. The examiner indicated that the Veteran had mild to moderate functional impairment due to his decreased range of motion, and he continues to work fulltime as a grounds keeper. He can perform his activities of daily living and denied any lost time from work. In 2012 VA treatment records, the treating professionals indicated that the Veteran had a normal range of motion in the lumbar spine. He was diagnosed as having back pain secondary to degenerative disc disease. In November 2012, the Veteran was afforded a VA General Medical Examination, during which he was noted to have chronic lumbosacral strain. He described low back pain at 7 to 8/10 that dull and "nagging." He stated that this pain radiates into the bilateral lower extremities with accompanying numbness and weakness. He indicated that all symptoms are daily and almost constant except for the paresthesias in the lower extremities that are intermittent or worsened with activity such as walking on hard surfaces, prolonged sitting/standing, bending, lifting, and cold weather. These activities will bring pain to 10/10 sharp in quality and still radiating, depending upon activity level. He indicated that his symptoms will decrease to 5 to 6/10 at rest, but they are never completely alleviated. When his pain flares he just "lays on floor" or rest, which he states he does a few times per week for 15 minutes to 1 hour. He described incapacitating episodes where he has been laying on hard surface/resting for a day or so, from two to three times per month. He indicated that his low back is fatigued/weak with any activity, especially bending or lifting. He denied swelling in lower back or bowel/bladder dysfunction. Range of motion testing revealed forward flexion to 65 degrees with pain; extension to 15 degrees with pain; right lateral flexion to 25 degrees with pain, left lateral flexion to 20 degrees with pain; right lateral rotation to 10 degrees with pain; and left lateral rotation to 10 degrees with pain. The Veteran was unable to perform repetitive-use testing because of a flare of pain after initial range of motion. The examiner indicated that the Veteran has functional loss, functional impairment, and/or additional limitation of range of motion of the thoracolumbar spine after repetitive use. This results in less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, or weight-bearing. The examiner appreciated bilateral pain and spasm upon palpation of the lumbosacral paraspinal region. He has guarding/muscle spasms that results only in an abnormal gait. Muscle strength testing in the bilateral extremities was 4/5 in all areas of both extremities. There is diffuse muscle atrophy present in the bilateral lower extremities-specifically in the calves and thighs. Deep tendon reflexes in the bilateral lower extremities are hypoactive. Sensory examination revealed decreased sensation to light touch in the bilateral lower extremities. The examiner noted that the Veteran's bilateral sural nerves had a decreased sensation. Straight-leg testing was positive, bilaterally. The examiner noted bilateral radicular pain. He described constant moderate pain, severe intermittent pain, mild paresthesias/dysesthesias, and moderate numbness in the bilateral lower extremities. The examiner indicated that the nerve roots involved are the femoral nerves and sciatic nerves in both lower extremities. He did not find evidence of any other neurological abnormalities associated with the Veteran's lumbar spine disability. The examiner indicated that the Veteran had IVDS of the thoracolumbar spine with at least 4 weeks, but less than 6 weeks of incapacitating episodes. X-rays revealed degenerative disc disease of the lumbar spine. With respect to the impact on his work, the examiner indicated that the Veteran is no longer able to perform duties as grounds keeper at his last position at Parks & Recreation Department for New Britain due to duties that required bending, lifting, prolonged sitting/standing, lawn mowing. He indicated that the Veteran last worked in 2010. She opined that the Veteran's back disability has a moderately severe impact on ability to work, and it is unlikely that he is able to perform sedentary work due to increased back pain with prolonged sitting. The examiner opined that the Veteran currently unable to obtain and secure gainful employment consistent with his training and education due to his service-connected lumbosacral disability. This is mainly due to his inability to bend, lift, stand/sit, all of which cause flares of back symptoms and increase the severity of his symptoms. In June 2013, the Veteran's claims file was sent for further clarification with respect to his service-connected lumbar spine disability. The examiner noted that the Veteran has been in receipt of service connection for chronic lumbosacral strain since 1973. She indicated that the Veteran's degenerative disc disease and IVDS of the lumbar spine with radiculopathy is not service-connected. Following review of the claims file and previous VA examination reports, the examiner opined that the Veteran's degenerative disc disease, IVDS, and radiculopathy are not secondary to his service-connected chronic lumbosacral strain. In reaching this conclusion, the examiner indicated that, "[t]here is no medical evidence to support a relationship between lumbar strain and lumbar DDD, radiculopathy, and/or intervertebral disc syndrome." She did not provide any further rationale or provide an opinion with respect to aggravation. Regarding employability, the examiner indicated that she "cannot resolve this issue without resort to mere speculation" and she is "unable to determine whether the service connected lumbar strain or lumbar DDD, radiculopathy, and/or intervertebral disc syndrome are causing subjective/objective symptoms without resorting to mere speculation." She did not indicate why it would be speculation. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent, prior to August 11, 2010, for his service-connected low back disability. The Board finds that, however, that beginning August 11, 2010, the Veteran's low back disability warrants a 40 percent rating, but no higher. The Board also finds that a separate, 20 percent rating for radiculopathy of each lower extremity is warranted. Initially, the Board acknowledges that the degenerative disc disease and IVDS of the lumbar spine with radiculopathy of the bilateral lower extremities have never been definitively linked to the Veteran's service-connected lumbosacral strain. The Board is aware that there are some opinions with sparse rationale stating that his degenerative disc disease and IVDS of the lumbar spine with bilateral radiculopathy are not related to service or a service-connected disability, but finds however, that these opinions lack sufficient rationale to support. First, there is no evidence that the Veteran was treated for post-service, work-related back problems, and his parachute injury was to his neck, not to his low back. As such, the Veteran has clearly been service-connected for a disability of the low back, and there is no evidence of intervening trauma or injury, the Board will afford the Veteran the benefit of the doubt and presume that all symptoms and manifestations noted during the period under consideration in this appeal, including degenerative disc disease and IVDS of the lumbar spine with bilateral radiculopathy, are attributable to the service-connected disorder. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (the Board is precluded from differentiating between symptomatology attributed to service-connected disability and non service-connected disability in the absence of medical evidence which does so). Analysis Low back: Prior to August 11, 2010 Prior to August 11, 2010, the Veteran had not appeared at two of his scheduled VA examinations. The evidence of record showed complaints of low back pain and intermittent radiation into the left buttock. Neurological testing was within normal limits and there was no radiculopathy in either lower extremity. The evidence of record prior to August 11, 2010, did not show that the Veteran's lumbar spine disability was manifested by forward flexion of greater than 30 degrees, but less than 60 degrees; combined range of motion of the thoracolumbar spine of less than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes of at least two weeks, but less than four weeks in the past 12 months. In other words, his symptoms did not meet the rating criteria for a higher, 20 percent rating. Moreover, although there is evidence of intermittent radiation of pain into the left buttock, he was not diagnosed as having any neurological manifestation of his lumbosacral strain. As such, a separate rating for neurological manifestations is not warranted during this timeframe and will be discussed below. Low back: Beginning August 11, 2010 The Board finds that a 40 percent rating, but no higher, is warranted for the Veteran's lumbar spine disorder, beginning August 11, 2010. During his August 2010 VA examination, the Veteran had forward flexion of the lumbar spine to 60 degrees. His flexion, however, was limited to 30 degrees with pain. The Board finds that in light of the DeLuca factors, and upon consideration of the Veteran's painful motion and functional impairment, that forward flexion is functionally no greater than 30 degrees. As such, he meets the criteria for a 40 percent rating for his service-connected back disability. The Board finds, however, that the Veteran is not entitled to a rating in excess of 40 percent beginning August 11, 2010, because the evidence of record does not show unfavorable ankylosis of the entire thoracolumbar spine or entire spine. The evidence of record during this timeframe, including the competent lay statements provided by the Veteran, does not show unfavorable ankylosis of the spine to warrant a rating in excess of 40 percent. For reference, ankylosis is when the joint at issue is fixed in place, preventing all motion. This clearly has not been the case with the Veteran's disability. As such, the Board finds that the 40 percent rating is appropriate for the Veteran's back disability. Again, at no time on appeal has the Veteran been shown to have ankylosis of the spine. Additionally, throughout the timeframe on appeal, the Veteran has not had doctor-prescribed bed rest for treatment of his lumbar spine. Indeed, the November 2012 VA examiner found that the Veteran had greater than 4 weeks, but less than 6 weeks of incapacitating episode in the past 12-month period, but the evidence of record does not show that this was doctor prescribed. Moreover, even if he was prescribed bed rest for his lumbar spine disability, he would not meet the criteria for a 60 percent rating because he has no incapacitating episodes lasting at least 6 weeks in the past 12-month period. As such, a rating in excess of 40 percent for IVDS symptoms is not warranted either. In sum, a clear preponderance of the evidence shows that the Veteran is entitled to a 40 percent rating for his low back disability beginning August 11, 2010, but it is against a disability rating in excess of 40 percent during the applicable period, as the Veteran's complaints of limited motion and functional impairment are adequately accounted for in the newly assigned 40 percent rating. The objective clinical findings consistently fail to show that his disability meets the criteria for a disability rating in excess of 40 percent, namely ankylosis. Accordingly, a disability evaluation of 40 percent, but not higher, beginning August 11, 2010, for the Veteran's disability of the lumbosacral spine is granted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Radiculopathy Upon careful review and consideration of the evidence of record, the Board finds that it would not be pyramiding to award separate, 20 percent ratings each for moderate radiculopathy of the bilateral lower extremities beginning November 29, 2012. The Veteran was first clinically diagnosed as having radiculopathy of the bilateral lower extremities during his November 2012 VA examination. Prior to that time, his sensory/neurological examinations in conjunction with his low back disability were negative, and with only a history of intermittent radiation of pain in the left buttock and occasional numbness. The August 2010 VA examination showed no neurological manifestations of his low back disability, nor did the Veteran report any. The Board finds that beginning November 29, 2012, the Veteran's radiculopathy symptoms are no more than moderate in nature. In other words, his incomplete paralysis of either the sciatic or femoral nerve is moderate in nature as he has some diffuse muscle atrophy in the lower extremities, moderate constant radiating pain, severe intermittent pain, mild paresthesias/dysesthesias, and moderate numbness. As his muscle strength is slightly diminished, and he continues to have some sensation in the bilateral lower extremities, though decreased, the Board finds that his symptoms do not meet the level of severe incomplete paralysis under any of these codes. In sum, the Board finds that his symptoms are most consistent with those associated with moderate, incomplete paralysis of the affected nerve. As such, a 20 percent rating for each lower extremity is warranted beginning November 29, 2012, for radiculopathy. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is 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 does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected low back disorder with radiculopathy is inadequate. A comparison between the level of severity and symptomatology of the Veteran's low back disorder with radiculopathy with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. Specifically, the Veteran primarily reports chronic pain with radiation. As discussed above, the staged ratings above, as well as the separate ratings for radiculopathy, are adequate to fully compensate the Veteran for his pain, limited motion, radiation of pain, and other symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. TDIU Legal Criteria Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Factual Background and Analysis As shown above, the Board has increased rating for the Veteran's low back disability and assigned separate ratings for radiculopathy of the bilateral extremities-for the timeframes shown above. The Veteran contends that he is unemployable due to his service-connected back disability. For the reasons discussed below, the Board finds that TDIU is not warranted prior to November 29, 2012, but beginning November 29, 2012, the Veteran is entitled to a TDIU. Although the Veteran did not specifically apply for a TDIU, in its October 2012 remand, the Board found that the Veteran's hearing testimony essentially included a request for a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). During his June 2012 hearing, the Veteran asserted that he was essentially forced to leave his job because of his back disability and he has been unemployed since 2010. Prior to August 11, 2010, the Veteran was service-connected for the following disabilities: major depressive disorder, 30 percent; chronic lumbar strain, 10 percent; tinnitus, 10 percent; and bilateral hearing loss, 0 percent. His combined disability rating was 50 percent. Between August 11, 2010, and November 29, 2012, the Veteran's service-connected disabilities include: chronic lumbar strain, 40 percent; major depressive disorder, 30 percent; tinnitus, 10 percent; and bilateral hearing loss, 0 percent. His combined disability rating was 60 percent. Beginning November 29, 2012, the Veteran's service-connected disabilities include: chronic lumbar strain, 40 percent; major depressive disorder, 30 percent; radiculopathy of the right lower extremity, 20 percent; radiculopathy of the left lower extremity, 20 percent; tinnitus, 10 percent, and bilateral hearing loss 0 percent. His combined disability rating was 80 percent. The Board finds that prior to November 29, 2012, the Veteran's service-connected disabilities do not meet the percentage rating standards for a TDIU. 38 C.F.R. § 4.16(a). Nevertheless, the Board must consider whether the evidence warrants referral to the appropriate VA officials for entitlement to a total disability rating for compensation purposes based on individual unemployability on an extraschedular basis under the provisions of 38 C.F.R. §4.16(b). See Bowling, 15 Vet. App. at 1. For a Veteran to prevail on a claim for entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran reported that he has not worked since 2010 because of his back disability. Prior to that time, the record reflects that the Veteran worked seasonally and/or part-time in grounds keeping-including working for the parks and recreation department in his community. He indicated that he had to leave this employment due to his low back disability and has not been able to work since that time. Having reviewed the record, the Board finds that the greater weight of probative evidence is against finding that the Veteran's case is outside the norm so as to warrant extraschedular consideration prior to November 29, 2012. The Veteran has not contended that he should be entitled to unemployability prior to 2010, nor does the evidence show that his disability picture is of a nature to warrant extraschedular consideration. Prior to November 29, 2012, the Veteran's back disability was shown to impact his work, but he was not found to be unemployable, and was, in fact, employed for some of the time. The Veteran was first found to be unemployable to both sedentary and physical work during his November 29, 2012, VA examination. In short, the Board notes there is no medical professional who has suggested that the Veteran is unable to maintain and follow substantially gainful employment prior to November 29, 2012, as a result of his service-connected disabilities. The Board also cannot identify any symptoms or manifestations of his back disability (or other service-connected disabilities) that suggest that it are outside the norm in either its nature of severity so as to render him totally unable to maintain or follow employment prior to November 2012. Although the Veteran can certainly describe symptoms and the difficulties caused by his back disability, the Board finds any assertion that such symptomatology is so severe as to render him unemployable prior to November 2012, particularly problematic in light of the Veteran's own admission that he worked until 2010 and the majority of his working life he was in sales and not in manual labor. The Board finds that prior to November 2012, the evidence does not show that there was nothing unusual about either his service-connected lumbar spine disorder or the overall disability picture presented by his service-connected disabilities that would suggest they were so severe as to render him totally unemployable. In fact, his 40 percent rating for his low back disability during that timeframe adequately represents the severity of his symptoms and their implication on his employment. As outlined above, in Van Hoose, 4 Vet. App. at 363, the Court noted, 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 and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (1992). In this case, there is simply no evidence of unusual or exceptional circumstances prior to November 29, 2012, to warrant referral for extra-schedular consideration of a total disability rating based on the Veteran's service-connected disabilities. During that timeframe, the Veteran had low back problems, without radiculopathy, depressive symptoms, and hearing loss/tinnitus none of which were shown to prevent him from obtaining and maintaining gainful employment. Given the above, although the Board does not doubt that the Veteran's service-connected disabilities has some effect on his employability prior to November 29, 2012, the preponderance of the evidence does not support any contention that his service-connected disabilities were of such severity as to preclude him from participation in any form of substantially gainful employment. Indeed, the most credible lay and medical evidence of record clearly demonstrates that the Veteran's service-connected disabilities did not preclude some form of employment prior to November 29, 2012. Accordingly, in the absence of any evidence of unusual or exceptional circumstances beyond what is contemplated by the assigned schedular disability evaluations, the preponderance of the evidence is against the Veteran's claim that he is precluded from securing substantially gainful employment solely by reason of his service-connected disabilities prior to November 29, 2012, or that he is incapable of performing the physical acts required by employment due solely to his service-connected disabilities, even when his disabilities are assessed in the context of subjective factors such as his occupational background and level of education. The Board concludes, therefore, that referral of this claim, prior to November 29, 2012, for consideration of a total disability rating on an extraschedular basis is not warranted. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable for this timeframe. See 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds, however, that the evidence supports a TDIU beginning November 29, 2012. On November 29, 2012, the Veteran was afforded a VA general medical examination. The examiner opined that the Veteran is unemployable to both sedentary and physical labor due to his low back disability. The examiner found that the "Veteran is currently unable to obtain and secure gainful employment consistent with his training and education due to [his] s/c lumbosacral condition due to [his] inability to bend, lift, stand/sit, [which causes] flares of back symptoms and [increased] severity of symptoms." Based on the most recent VA examination in November 29, 2012, the record clearly shows that the Veteran cannot obtain and maintain employment due to his low back symptoms. Additionally, he first met the schedular rating threshold for a TDIU beginning November 29, 2012. As noted above, his most recent work history has included manual labor-type employment which would be negatively impacted by his low back symptomatology. As the examiner has indicated that even sedentary employment is hindered by his service-connected disability, the Board does not believe that the sedentary employment would be easily obtainable, nor would attempts at part-time employment result in anything greater than marginal employment. As such, the Board finds that the Veteran is entitled to TDIU beginning November 29, 2012. The benefit of the doubt rule is therefore for application for this timeframe. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER A rating in excess of 10 percent, prior to August 11, 2010, for a low back disability is denied. A 40 percent rating, but no higher, beginning August 11, 2010, for a low back disability is granted. A separate 20 percent rating, beginning November 29, 2012, for radiculopathy of the right lower extremity is granted. A separate 20 percent rating, beginning November 29, 2012, for radiculopathy of the left lower extremity is granted. A TDIU, prior to November 29, 2012, is denied. A TDIU, beginning November 29, 2012, is granted. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs