Citation Nr: 1328043 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 95-24 468A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability, from May 6, 1994, through August 3, 2004. 2. Entitlement to a rating in excess of 40 percent for a lumbar spine disability, as of August 4, 2004, through to December 19, 2004. 3. Entitlement to a rating in excess of 60 percent for a lumbar spine disability, as of December 20, 2004, to May 5, 2011. 4. Entitlement to an initial rating in excess of 10 percent rating for incomplete paralysis of the sciatic nerve in the lower right extremity, from September 23, 2002, through December 19, 2004. 5. Entitlement to a separate disability rating for incomplete paralysis of the sciatic nerve in the lower right extremity, prior to September 23, 2002. 6. Entitlement to a rating in excess of 60 percent for a lumbar spine disability for the period since May 5, 2011. 7. Entitlement to a total disability evaluation on the basis of individual unemployability (TDIU) due to service-connected disabilities for the period prior to May 5, 2011. 8. Entitlement to a TDIU due to service-connected disabilities for the period since May 5, 2011. REPRESENTATION Appellant represented by: Joseph R. Moore, Esquire ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions by the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was originally awarded entitlement to service connection for a low back strain by means of rating decision dated in July 1974, and an initial disability rating of 10 percent was assigned. The current claim on appeal for an increased disability rating was received on May 6, 1994. By means of rating decisions dated in September 1994, June 1995, and August 1995, the RO continued the previously assigned rating of 10 percent. In May 1997, the RO revisited the matter and determined that a disability rating of 20 percent was warranted for the Veteran's service-connected low back strain, effective May 6, 1994. In November 2004, the RO held that a disability rating of 40 percent was warranted for the Veteran's low back strain with degenerative disc disease (DDD) of the lumbar spine, effective August 4, 2004. In September 2005, the RO determined that an increased disability rating was not warranted for the Veteran's service-connected lumbar spine disability and denied entitlement to TDIU. In a March 2011 decision, the Board held that from May 6, 1994, to August 3, 2004, the criteria for a disability rating in excess of 20 percent for a lumbar spine disability had not been met; from August 4, 2004, to December 19, 2004, the criteria for a disability rating in excess of 40 percent for a lumbar spine disability had not been met; as of December 20, 2004, the criteria for a disability rating of 60 percent, but no higher, for a lumbar spine disability had been met; and, from September 23, 2002, to December 19, 2004, the criteria for a separate 10 percent rating for incomplete paralysis of the sciatic nerve in the lower right extremity had been met. The Board also remanded the matter of entitlement to a TDIU for additional evidentiary development. The Veteran appealed the March 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2011, the Veteran's representative and the VA General Counsel filed a joint motion to remand (JMR) and vacate the Board decision in part and remand the claims. The Court granted the motion by an Order also dated in August 2011. In compliance with the JMR, in February 2012, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development. The RO completed the additional development as directed, continued to deny higher ratings, denied a TDIU, and returned the case to the Board for further review. The issues of entitlement to a rating higher than 60 percent for a lumbar spine disability for the period since May 5, 2011 and entitlement to a TDIU for the period since May 5, 2011, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. In addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file. The Veteran's attorney submitted a February 2013 Motion For a 90-day extension of time, which the undersigned Veterans Law Judge granted in March 2013. The attorney submitted additional argument in June 2013 and, under cover of another June 2013 letter, submitted additional VA treatment records related to the Veteran under a waiver of initial RO review and consideration. In light of the waiver, the Board may consider the evidence without the necessity of a remand. See 38 C.F.R. § 20.1304 (2012). The Board notes, however, that the vast majority of the submitted records are duplicative of those already in the paper claims file. FINDINGS OF FACT 1. The Veteran previously perfected appeals of Issues 1, 2, 4, and 5, as noted in the Introduction. 2. In June 2013, prior to the promulgation of a final decision on the appeals, via letter to the Board submitted by his attorney, the Veteran requested withdrawal of his appeal of the issues related to the evaluation of his low back disability for the periods prior to December 20, 2004. 3. As of December 20, 2004, the Veteran's lumbar spine disability has not been characterized by unfavorable ankylosis of the entire spine. 4. The preponderance of the evidence of record shows that the Veteran's lumbar spine disability did not preclude him from obtaining and maintaining substantially gainful employment for the period up to May 5, 2011. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met as to the claims of entitlement to a rating in excess of 20 percent for lumbar spine disability from May 6, 1994, to August 3, 2004; a rating in excess of 40 percent for the period August 4 to December 19, 2004; a rating in excess of 10 percent for right lumbar sciatica for the period September 23, 2002, to December 19, 2004; and entitlement to a separate rating for associated right lumbar sciatica prior to September 23, 2002. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. For the period December 20, 2004, through May 4, 2011, the criteria for a disability rating in excess of 60 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.10, 4.21, 4.71a, Diagnostic Codes (DCs) 5003, 5242, 5243, 5286, 5289, 5292, 5293, 5295 (2002, 2012). 3. For the period prior to May 5, 2011, the criteria for a TDIU were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 47 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). With regard to the claim of entitlement to a TDIU, the Veteran was sent correspondence in May 2005 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, a May 2006 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date, and additional complete notice was issued in February 2009. The claim was thereafter re-adjudicated, curing any timing defect. Mayfield, 444 F.3d 1328. Accordingly, no further development is required with respect to the duty to notify, with regard to the claim of entitlement to TDIU. With respect to the claims for increased disability ratings, the Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determinations on appeal. Nonetheless, fully compliant notice was later issued as a result of September 2004, May 2005, May 2006, January 2007 and February 2009 communications, and, afterwards, the claim was re-adjudicated, most recently as noted in the November 2012 Supplemental Statement of the Case (SSOC). Accordingly, any timing deficiency has here been appropriately cured. Id.; Prickett, 20 Vet. App. at 376 (the issuance of a fully compliant VCAA notification followed by re-adjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect). The Board further finds that the Veteran was not prejudiced by the initial content deficiency. The various rating decisions, SOCs, and SSOCs, provided reasons and bases for the applicable decisions. Further, prejudice is not presumed, See Shinseki v. Sanders, 129 S. Ct. 1696 (2009), and neither the Veteran nor his representative has asserted any specific prejudice. Accordingly, no further development is required with respect to to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examinations dated in July 1994, September 2004, August 2005 and March 2009. Also in the claims file are records related to the Veteran's award of benefits by the Social Security Administration. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Lastly, the Veteran has not asserted that there are additional records to be obtained. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Consideration of the whole record The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his/her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Withdrawal of an Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by an appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in a June 2013 response to the November 2012 Supplemental Statement of the Case (SSOC), through his attorney, the Veteran informed the Board he desired to withdraw the issues related to increased ratings for his low back and associated disabilities for the periods prior to December 19, 2004. The Board notes the June 2013 letter does not reflect the file number of the Veteran's appeal. Nonetheless, in as much as the Veteran himself signed and sent the letter, it is sufficient to withdraw the appeal. See 38 C.F.R. § 204(b). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the named issues, and it is dismissed in the action later in this decision. Increased Ratings Laws & Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal of an initial rating. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of the 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 (2012). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 (2012) an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. §§ 3.321(b) (2012). The schedular criteria for evaluating disabilities of the spine were revised twice during the pendency of the Veteran's appeal. The first change applied only to the criteria for rating intervertebral disc syndrome (IVDS) under DC 5293, and it was effective September 23, 2002. The other DCs applicable to the spine were not changed. The next amendment affected general diseases of the spine and became effective September 26, 2003. See 68 Fed. Reg. 51,454 (August 27, 2003). The Board notes, however, that the Veteran's rating period started in May 1994. The current criteria may only be applied prospectively from their effective date; they cannot be applied to a period prior to their effective date of September 23, 2002, and September 26, 2003, respectively. The old rating criteria, however, may be applied throughout the period of the appeal, if they are deemed more favorable to the Veteran. 38 U.S.C.A. § 5110(g); VA O.G.C. Prec. Op. No. 7-2003 (Nov. 19, 2003); VA O.G.C. Prec. Op. No. 3-2000 (April 10, 2000); see generally Karnas v. Derwinski, 1 Vet. App. 308 (1991) and Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); but cf. Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005) and Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, VA will review the Veteran's appeal under both the prior and current criteria. Analysis Historically, the Veteran injured his back during active service, and a July 1974 rating decision granted service connection for a low back strain. The rating decision assigned an initial 10 percent rating under 38 C.F.R. § DC 5295 (2002), effective in June 1974. Following the Veteran's January 1993 claim for an increased rating, an April 1993 rating decision continued the 10 percent rating for the low back strain and denied entitlement to service connection for DDD/radiculopathy. The Veteran's claim that triggered the instant appeal was received by VA in May 1994. A September 1994 rating decision continued the assigned 10 percent rating, and the Veteran appealed. During the appeal process, a May 1997 rating decision awarded service connection for the DDD associated with the low back strain, effective in May 1994. The Board will address the particulars in the discussion that follows. As noted earlier, the rating criteria for IVDS were revised effective September 23, 2002, and the current spine rating criteria for other diseases of the spine were amended effective September 26, 2003. As of September 23, 2002, IVDS, pre- or postoperative is to be rated either on the basis of the chronic orthopedic and neurological manifestations; or, on the basis of incapacitating episodes, whichever results in the higher rating. A 10 percent disability rating is warranted for disability with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 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. A maximum 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293 (September 23, 2002). Note (1) to the revised DC 5293 defined an "incapacitating episode" as "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 neurologic manifestations" were defined as "orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so." Finally, the diagnostic criteria pertinent to spinal disabilities in general were revised effective September 26, 2003. The General Formula provides that 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, a 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion 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 height. A 20 percent rating is assigned for 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, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula (2012). Note (1) to the General Formula instructs that associated objective neurological abnormalities should be rated separately under an appropriate Diagnostic Code. Under these revisions, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are evaluated separately. The General Formula is based entirely on objective criteria, as criteria such as mild or severe limitation of motion (LOM) were replaced with specific range of motion (ROM) values. The General Formula also changed the applicable diagnostic codes. Under the General Formula, the DC for lumbosacral strain is 5237; degenerative arthritis of the spine 5242; and, IVDS is now 5243. See 38 C.F.R. § 4.71a, General Formula (2012). The General Formula also provides objective standards for ROM of the lumbar spine: for VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. See 38 C.F.R. § 4.71a , Plate V (2012). From December 20, 2004 to May 5, 2011 In January 2005, the Veteran returned for treatment with his private practitioner, Dr. S. He complained of moderate neck and back pain, accompanied by headaches and swelling. Treatment consisted of hydrocollator, electric stimulation and adjustment. He was last seen on February 21, 2005. Although he demonstrated some improvement, he continued to experience pain and lingering inflammation in the low back and right hip. VA treatment reflects an evaluation of the Veteran's low back in February 2005. His back pain had increased in December 2004, without any preceding injury. The pain radiated into his right lower extremity and he experienced numbness over the lateral aspect of the right thigh. The Veteran had been employed as a salesman in a car dealership for 14 years. However, he reported that he could no longer perform that work because of his low back disability. The Veteran reported no urinary problems other than nocturia. The examiner noted that a January 2005 MRI had not definitely revealed any nerve root impingement. Upon physical examination, the Veteran could not fully weight bear on his right lower extremity. The examiner noted the Veteran had chronic right knee pain and had worn a hinged brace for quite some time. There was tenderness over both sides of the lumbar spine, with some increased muscle tone. Flexion was to 60 degrees and there was moderate pain in all ranges of motion. Straight leg raising test caused pain in the low back at 60 degrees, bilaterally. Lasegue sign was negative, bilaterally. Deep tendon reflexes, pinprick sensation and muscle testing were within normal limits, bilaterally. The Veteran was diagnosed with chronic low back pain with radicular pain down the right lower extremity, but with no definite signs of lumbosacral radiculopathy. The VA examiner recommended conservative treatment and that the Veteran discontinue his chiropractic treatment. He prescribed an exercise program, a physical therapy regimen, and a TENS unit. A February 2005 VA clinical record reflected use of a TENS unit and a cane, the latter of which might also have been for an unrelated knee problem. In April 2005, the Veteran's employer submitted that the Veteran had been out of work from December 20, 2004, through December 31, 2004, and from January 1, 2005, through February 11, 2005. It was his understanding that the Veteran had been receiving care from Dr. S for his low back pain. In August 2005, the Veteran presented for a VA examination. At that time, he was employed as a car salesman. He reported that he had recently been off from work due to his back pain for a month and a half, from December 2004 to February 11, 2005. Physical examination demonstrated tenderness on the lumbosacral junction on deep pressure. Flexion was to 60 degrees and extension was to 20 degrees. Lateral flexion and rotation were to 20 degrees, bilaterally. ROM was mostly affected by pain, and there was obvious pain with movement. Straight leg raising was difficult, bilaterally. He could rise to 45 degrees. Deep tendon reflexes were 2+. Neurological evaluation of the lower extremities was within normal limits. Pinprick sensation and vibration were slightly altered on the right side. The examiner noted the incapacitating episode during which the Veteran could not work for a month and one-half because of very severe back pain. An August 2005 EMG examination report in the records obtained from the Social Security Administration reflects that the right leg and back muscles were within normal limits. There was no evidence of denervation in the right L4, L5, or S1 nerve root territories. VA treatment records dated in December 2008 indicate that the Veteran was performing custodial work. Such reports reflect continued complaints of back pain. Upon VA examination dated in March 2009, the examiner noted a history of decreased motion, stiffness, weakness, muscle spasms and pain in the low back. The low back pain was characterized as moderate, and it radiated to the right leg. The Veteran also experienced moderate flare-ups of pain on a weekly basis that each lasted a couple of hours. The Veteran, however, had not experienced any incapacitating episodes in the past twelve months. He was unable to walk more than a few yards and he ambulated with an antalgic gait. Upon physical examination, there was no evidence of muscle spasms, atrophy or weakness. There was evidence of guarding, pain with motion and tenderness. Flexion was to 60 degrees and extension was to 20 degrees. Lateral flexion and rotation were to 20 degrees, bilaterally. There was objective evidence of pain on active range of motion. However, there was no additional limitation of motion on repetitive testing. Motor strength of the hip and knee was decreased at 4/5 bilaterally; Ankle dorsiflexion, plantar flexion, and great toe, were normal at 5/5. Sensation of the lower extremities was normal at 2+ bilaterally. Knee and ankle jerks, however, were decreased at 1+ bilaterally. Plantar flexion reflexes were normal bilaterally. The Veteran reported that he had lost two weeks of work due to back pain in the past 12 months. His lumbar spine disability had a moderate effect on chores, shopping and exercise and prevented sports. The examiner opined that it was at least as likely as not that the Veteran's service-connected lumbar spine disability rendered him unable to secure a substantially gainful occupation since it caused him to have pain and resulted in an inability to bend or lift heavy objects. The Veteran had reported that he had to quit his janitorial job because of difficulties walking up and down stairs. Moreover, most of the positions that the Veteran acquired were physical and his back pain prevented him from doing them. In his current position, the Veteran had reported back pain on prolonged standing and he would have to sit after an hour of standing. In April 2009, the Veteran submitted that he had lost his employment two weeks earlier "due to the slow work force needed to fill orders." Although apparently not before the Board in March 2011, records obtained from the Social Security Administration of June 2009 note the Veteran reported occasional urine incontinence. A July 2009 neurological consult noted an MRI examination showed the neural foramie were all open, and that a disc protrusion was most likely not the cause of the Veteran's pain, as his pain distribution did not correlate with lumbar spinal stenosis. A September 2009 entry noted that examination revealed no signs of sciatic irritation. A July 2010 entry noted sensation of the lower extremities was normal bilaterally, motor strength was normal, and pedal pulses were good. The March 2011 Board decision reflects the March 2009 VA examination was the last evidence of record considered at that time. VA records dated in June 2010 obtained by the Social Security Administration note that sensation and motor strength were normal in the bilateral lower extremities, and pedal pulses were good. The extensive treatment records the Veteran's attorney submitted on a CD-ROM are essentially duplicative of those obtained from the Social Security Administration. As noted in the Introduction, the attorney waived initial RO review and consideration of the additional evidence. Again, during the period in question, the Veteran is in receipt of a 60 percent evaluation for his low back disability. This is the maximum available rating based on the criteria specific to IVDS. Moreover, the Board finds no factual basis for an evaluation in excess of 60 percent if rated on the basis of the chronic orthopedic and neurologic manifestations. The altered sensation to vibration and pinprick on the right noted at the August 2005 examination would warrant no more than mild incomplete paralysis and 10 percent. 38 C.F.R. § 4.124a, DC 8520 (2012). Further, an August 2005 EMG revealed no objective evidence of right lumbar radiculopathy. Given this, and in light of the neurologic findings detailed in the March 2009 VA examination and in a July 2010 record, as described above, the maximum appropriate evaluation for the neurologic component of the low back disability would be 20 percent, for moderate incomplete paralysis. Moroever, the ROM findings noted above appear commensurate with a 20 percent evaluation. In any event, even if considerations of additional functional limitation enabled a conclusion that a 40 percent evaluation was warranted, this, combined with the 20 percent neurologic rating, would not exceed the combined 60 percent single rating already in effect under the General Formula. (In fact, even a finding of moderately severe incomplete paralysis, equating to a 40 percent rating, would still only yield a combined 60 percent evaluation under 38 C.F.R. § 4.25 when considered with a 40 percent evaluation for the orthopedic manifestations under the General Rating Formula). The JMR noted the prospect that the examiner at the March 2009 examination did not comply with prior Board remand, as the report does not reflect a discussion of additional loss of ROM or prior references in the medical evidence of record of numbness and tingling. Concerning the first basis of the JMR, the March 2009 examination report reflects the examiner specifically noted repetitive-use testing elicited pain but did not result in additional loss of ROM. In light of the fact the examiner found the Veteran's sensation normal, the Board finds no absent compliance by the examiner not discussing prior entries related to those symptoms. Further, the prior Board decision allowed the maximum allowable rating for IVDS under incapacitating episodes. 38 C.F.R. § 4.71a, DC 5243. The Board finds the objective findings on clinical examination did not support a higher rating if the Veteran's IVDS was rated on the basis of chronic orthopedic and neurological manifestations, as explained in detail above. Thus, in light of the March 2011 Board decision, the Veteran's IVDS more nearly approximated the assigned 60 percent rating as of the March 2009 examination. 38 C.F.R. § 4.71a, DC 5243. The Board notes that 60 percent is also the maximum rating for IVDS under DC 5293 of the prior criteria. See 38 C.F.R. § 4.71a (2001). In light of the foregoing, the Board finds the preponderance of the evidence of record shows the Veteran's IVDS continued to more nearly approximate the assigned 60 percent rating up to May 5, 2011, the date of the VA general examination. There is no basis for a rating in excess of 60 percent during the period in question. Extraschedular Consideration From December 20, 2004, to May 5, 2011 The Veteran's attorney argues in the June 13, 2013, submission that the Veteran should be considered for a rating in excess of 60 percent on an extraschedular basis. The attorney contends that the Veteran's low back disability disables him in ways not contemplated by the rating schedule, and it had a marked impact on his employment even before he met the Social Security Administration requirements for disability. These assertions must be considered as part of the Veteran's appeal of his rating. See Barringer v. Peake, 22 Vet. App. 242 (2008) (Board must discuss whether referral for extraschedular consideration is indicated where raised by the evidence of record). Applicable Legal Requirements In exceptional cases, where the rating schedule is deemed inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the applicable criteria, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). The Board is precluded from granting an increased rating on an extraschedular basis in the first instance. 38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board may, however, determine whether a particular claim merits submission for an extraschedular evaluation. Brannon v. West, 12 Vet. App. 32, 35 (1998); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Further, where the RO has considered the issue of an extraschedular rating and determined it inapplicable, the Board is not specifically precluded from affirming a RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) for an extra-schedular rating. Bagwell, 9 Vet. App. at 339. Before the Board may refer a case for extraschedular consideration, however, there first must be a finding that the Veteran's disability picture is exceptional. To do so, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. See Thun v. Peake, 22 Vet. App. 111 (2008). Analysis The Veteran's attorney argues that the evidence is sufficient for the Board to allow a higher rating on an extraschedular basis. As set forth above, however, the Board does not have the authority to allow a higher rating in the first instance. 38 C.F.R. § 3.321(b)(1); Floyd, 9 Vet. App. at 95. Hence, the Board will confine its consideration of this assertion to whether the evidence shows a referral is indicated. The attorney initially relies on DeLuca, 8 Vet. App. 202, to support his advocacy for an extraschedular evaluation by noting the Court emphasized the importance considering extraschedular criteria in determining a claimant's level of disability. The Board notes, however, that the Court has clarified its position since DeLuca in Thun, 22 Vet. App. 111. As set forth above, it is in fact the rating schedule that determines whether a case is referred for extraschedular consideration. As the attorney asserts, the Veteran's lumbar spine disability is manifested by chronic pain, stiffness, fatigability, and associated lumbar radiculopathy. The rating schedule contemplates all of those symptoms, as well as incapacitating episodes. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5235-5243 (2012), as well as the earlier versions of 38 C.F.R. § 4.71a as pertains to the spine. In light of the above, the Board finds the schedular rating criteria do in fact describe the Veteran's low back disability and its level of disability. The Board acknowledges the evidence of the impact of the Veteran's low back disability on his functional impairment. This includes the fact the Veteran had periods of absence from his prior employment, to include having been laid off for low productivity, and that left employment as a car salesman for temporary positions as a janitor. Nonetheless, the purpose of the rating schedule is to compensate a claimant for impairment of earning capacity to the extent practical. 38 C.F.R. § 4.1. Since the Board finds the rating schedule contemplates the Veteran's low back disability picture, the analysis does not proceed to the second step to determine if there has been marked interference with the Veteran's employment and frequent hospitalization. Thun, 22 Vet. App. 111. The fact the rating schedule contemplates the Veteran's disability means his disability picture is not exceptional. In the absence of an exceptional disability picture, there is no factual basis for referral for consideration of a higher rating on an extraschedular basis. 38 C.F.R. § 3.321(b)(1); Thun, supra. TDIU Prior To May 5, 2011 The Veteran's attorney asserts in the June 2013 submission that the evidence of record shows the Veteran was unemployable as of April 4, 2009. Applicable Law and Regulations A TDIU may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent, when it is found that the service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Unemployability associated with advancing age or intercurrent non-service-connected disability may not be considered in determining entitlement to a total compensation rating. 38 C.F.R. § 4.19. Factors to be considered are the Veteran's employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. The sole fact that a veteran is unemployed for non-service-connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant. A high schedular rating, in itself, is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can, in fact, find employment. See 38 C.F.R. §§ 4.1, 4.15. When evaluating a claim for a TDIU, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In discussing the unemployability criteria, the Court of Appeals For Veterans Claims (Court) has indicated that, in essence, the unemployability question, that is, the Veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of a claimant. See Moore v. Derwinski, 1 Vet. App. 83 (1991). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342 (2000). The VA General Counsel has concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also determined that "Unemployability" is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991). In determining whether a veteran is entitled to individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. at 361. Thus, in deciding the claim, the Board may not favorably consider the effects of the Veteran's nonservice-connected disabilities with respect to their degree of interference with the Veteran's employability. Indeed, the Court stated that in order for a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor that takes his case outside of the norm. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See Gary v. Brown, 7 Vet. App. 229 (1994). Analysis The Veteran's total combined rating is at least 70 percent. Thus, he meets the requirement for schedular consideration. See 38 C.F.R. § 4.16(a). Again, the Veteran's attorney asserts unemployability from April 2009; the evidence of record shows the Veteran was still working up to March 2009. At the March 2009 VA examiner, it was opined that it was at least as likely as not that the Veteran's disability rendered him unable to work. The RO continued the denial, however, finding that the examiner's statement was based on an incorrect factual premise (see July 2009 supplemental statement of the case). More specifically, the examiner's conclusion appeared to be based on the Veteran's subjective reports of his back symptoms, the severity of which were not supported by the clinical evidence of record. The attorney disputes this finding. Even assuming that the examiner's opinion was based on an accurate report of the Veteran's symptoms, such conclusion still does not enable a grant of TDIU in this case. Indeed, the Board reads the examiner's finding, in the context of the four corners of the examination report, to have meant that the Veteran was no longer able to perform the employment he had formerly pursued, not that the Veteran was unable to pursue any gainful employment. See 38 C.F.R. § 4.6. Indeed, the examiner expressly references heavy lifting in his rationale, indicating that he had not considered other forms of employment, to include sedentary employment. In addition to the above, the attorney asserts the Veteran's employability is shown by the findings of incapacitating episodes at VA examinations, which would preclude even sedentary work. However, there is no evidence in the claims file of incapacitating episodes as defined by regulation between April 2009 and May 2011. Hence, the Board rejects that assertion. In fact, at the May 2011 VA examination, the Veteran's occupational impairment was characterized as mild to moderate. The attorney contends that the examiner's finding is inconsistent with the Veteran's reports that he could not walk or stand for more than 15 minutes due to severe back pain. The Board also rejects this assertion, as the reported length of time the Veteran could sit or stand is not inherently inconsistent with the ability to perform sedentary work. The attorney also disputes the findings of the May 2011 examination on the basis of the incapacitating episodes argument, which the Board has rejected. The attorney then argues that unemployability for VA purposes is shown by the fact the Social Security Administration granted the Veteran disability benefits on the basis of his low back disorder, bilateral degenerative joint disease of the knees, and gout, all as of April 2009. There are significant differences in the definition of disability under the Social Security Administration and VA disability systems. As a result, Social Security Administration disability determinations are not binding on VA. Holland v. Brown, 6 Vet. App. 443, 448 (1994). On the other hand, there are also significant similarities between the two systems. Consequently, the Board must provide the basis for disagreeing with or not accepting a finding of disability by the Social Security Administration. The attorney concedes Social Security Administration determinations of disability are not binding on VA, and that nonservice-connected disabilities were considered by that agency; but he nonetheless argues the findings of that agency should be accorded substantial weight. In this case, the Board disagrees. In addition to considering nonservice-connected disabilities, the Social Security Administration also considered the Veteran's age and whether his skills set would readily transfer to another job. Those factors play no part in determining employability under VA regulations. See Gary, 7 Vet. App. 229. This also is the basis for rejecting the attorney's argument that no employer would hire the Veteran, as he would require significant amounts of leave. As noted earlier, the fact the Veteran has a high rating for his disability is recognition that he might encounter difficulty obtaining employment, but it is not evidence of unemployability. The Board notes the Veteran is a high school graduate, and his prior work included selling automobiles. As earlier noted, the May 2011 examination report reflects the examiner's determination that the Veteran's functional impairment for employment was mild to moderate, which would not preclude sedentary or physically non-demanding employment. Thus, the Board is constrained to find the preponderance of the evidence is against the claim for a TDIU for the period prior to May 5, 2011. 38 C.F.R. § 4.16. As noted earlier in the discussion of the applicable legal requirements, the Veteran is entitled to a staged rating where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal. See Hart, 21 Vet. App. 505. The discussions set forth above show how the Board applied the evidence of record, and the Veteran in fact received staged ratings where the evidence showed entitlement. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER The appeal of the issue of entitlement to a rating in excess of 20 percent for a lumbar spine disability, from May 6, 1994, through August 3, 2004, is dismissed. The appeal of the issue of entitlement to a rating in excess of 40 percent for a lumbar spine disability, as of August 4, 2004, through to December 19, 2004, is dismissed. The appeal of the issue of entitlement to an initial rating in excess of 10 percent rating for incomplete paralysis of the sciatic nerve in the lower right extremity, from September 23, 2002, through December 19, 2004, is dismissed. The appeal of the issue of entitlement to a separate disability rating for incomplete paralysis of the sciatic nerve in the lower right extremity, prior to September 23, 2002, is dismissed. From December 20, 2004, to May 5, 2011, a disability rating in excess of 60 percent is for a lumbar spine disability is denied. Entitlement to a TDIU for the period prior to May 5, 2011, is denied. REMAND As noted in the Introduction, in February 2012, the Board remanded the case for a current examination. In June 2012, the VA examiner noted the Veteran had experienced incapacitating episodes for a period of at least six weeks over the prior year. The Board's review of the medical evidence of record, however, does not reveal a prescription for bed rest issued by a physician. Constant treatment of the Veteran's low back disability is noted in the medical records but not bed rest prescribed by a physician. Thus, the claims file must be returned to the examiner for further comment and clarification. The June 2012 examination report indicates that the Veteran's low back disability impacted the Veteran's ability to work, but the examiner did not opine to what extent. Hence, that issue also requires clarification. Accordingly, the case is REMANDED for the following action: 1. Send the claims file and a copy of this remand to the examiner who conducted the June 2012 examination. Ask the examiner to provide the basis for the finding that the Veteran had experienced incapacitating episodes during the prior year. Remind the examiner of the regulatory definition of incapacitating episodes at 38 C.F.R. § 4.71a, DC 5243 Note (1). The examiner is also asked to assess the occupational impairment of the Veteran's low back disability. Is there at least a 50-percent probability that the Veteran's low back disability precludes him from obtaining and maintaining substantially gainful employment. In the event the examiner who conducted the June 2012 examination is no longer available, refer the claims file to another equally qualified examiner. If the examiner is unable to render the requested opinion without an examination of the Veteran, the RO will arrange for such. The claims file must be provided for review by the examiner as part of the examination. 2. After completion of all of the above, the RO should re-adjudicate the claims on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental statement of the case (SSOC). The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs