Citation Nr: 1328098 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 05-32 471A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an evaluation higher than 10 percent for chronic lumbosacral strain. 2. Entitlement to service connection for bilateral hip and leg conditions, to include as secondary to service-connected chronic lumbosacral strain. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied claims for a rating in excess of 10 percent for chronic lumbosacral strain, and service connection for bilateral hip and leg conditions. A hearing was held before a local Decision Review Officer (DRO) in February 2005. The Veteran was also previously scheduled for a Travel Board hearing in August 2011 but did not appear, and absent good cause justification for nonappearance, his prior hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2013). This matter was twice previously remanded by the Board for further case development. Most recently, pursuant to the Board's March 2013 remand a claim for a TDIU was deemed raised by the record in connection with the existing claim for increased rating for chronic lumbosacral strain, and the Board thereby assumed jurisdiction over the TDIU claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. The Veteran's symptomatology involving the low back region is attributable to nonservice-connected orthopedic disability, rather than service-connected chronic lumbosacral strain. 2. Bilateral sciatic neuropathy also is attributable only to nonservice-connected disability of the low back. 3. The Veteran's service-connected lumbosacral strain does not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are not met for an evaluation higher than 10 percent for chronic lumbosacral strain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5237 (2013). 2. The criteria are not met to establish service connection for bilateral hip and leg conditions, to include as secondary to service-connected chronic lumbosacral strain. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 3. The criteria for a total disability rating based on unemployability due to service-connected disability have not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 38 CFR 3.159(b)(1) (2013). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Through VCAA notice correspondence dated from February 2003 and March 2013, the RO (including through the AMC) notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further advised the Veteran of the responsibilities for providing supporting evidence, that VA and the Veteran had joint obligations to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The VCAA notice further explained how VA establishes disability rating and effective date elements of a claim for service connection. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The initial February 2003 VCAA notice correspondence preceded the June 2003 RO rating decision on appeal, and thus comported with the definition of timely notice. Meanwhile, the March 2013 follow-up notice correspondence clearly did not meet the timeliness criteria. However, the Veteran has had an opportunity to respond to the notice correspondence in advance of the most recent May 2013 Supplemental Statement of the Case (SSOC) readjudication his claims. There is no objective indication of any further relevant information or evidence that must be associated with the record. The Veteran has therefore had the full opportunity to participate in the adjudication of the claim. See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). The RO/AMC has taken appropriate action to comply with the duty to assist the Veteran with his claims through obtaining service treatment records (STRs), and records of VA and private outpatient treatment. The Veteran has also undergone VA Compensation and Pension examinations to determine the present diagnosis and likely etiology of claimed bilateral hip and leg conditions, as well as to determine the severity of chronic lumbosacral strain. See 38 C.F.R. § 4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). The RO/AMC has properly implemented the Board's prior remand directives through having afforded the Veteran comprehensive VCAA notice, as well as obtaining relevant medical records and providing the foregoing VA Compensation and Pension examinations. Meanwhile, in furtherance of his claims, the Veteran has provided several personal statements and has testified at a DRO hearing. There is no indication of any further relevant evidence or information that has not already been obtained. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Merits of the Claims Increased Rating for Chronic Lumbosacral Strain Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Under applicable rating criteria, this disability is to be evaluated in accordance with VA's General Rating Formula for Diseases and Injuries of the Spine. This rating formula provides for the assignment of a 10 percent rating when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent rating is for assignment upon a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher available 40 percent rating is made for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. On VA Compensation and Pension examination of March 2003, the Veteran reported consistent lower back pain, dull most of the time, becoming sharp on walking. There was no recent weight gain or weight loss. There was no fever, malaise, dizziness, or numbness. Bowel and bladder habits were regular. He was walking unaided. There was no sign of any foot drop. Gait was normal. He did not have any cane, crutch or walker. There was no history of any surgery. On objective physical examination, his spine was straight. Range of motion consisted of forward flexion to 30 degrees; backward extension to 10 degrees; rotation on either side, 10 degrees; lateral flexion 20 degrees on either side. Both lower extremities looked symmetrical. There was no any wasting of any group of muscles. Reflexes were normal on both lower extremities. The impression was osteoarthritis of the spine. On subsequent VA examination of November 2011, the diagnosis was indicated at the outset of lumbosacral strain, and lumbar degenerative disc disease. The Veteran reported having in the past severe flare-ups along the thoracolumbar spine, but now the pain was usually reasonably well-controlled by medication. On physical exam, the Veteran declined lumbar spine testing on this occasion for purposes of pain avoidance. He reported that previous testing had clearly shown limitations on back motions/mobility. The Veteran described functional loss of the thoracolumbar spine as including less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, deformity, atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and/or weight-bearing, and pain in hips associated with low back pain. There was localized tenderness or pain on palpation for the joints and/or soft tissue of the thoracolumbar spine, along with guarding or muscle spasm of the spine, with abnormal gait, and abnormal spinal contour (such as scoliosis, reversed lordosis, or abnormal kyphosis). There was present radiculopathy, primarily in the left lower extremity. There was IVDS of the thoracolumbar spine, with reported incapacitating episodes of at least 6 weeks over the previous 12 months. X-rays documented arthritis of the thoracolumbar spine. On VA re-examination of May 2013, the diagnosis at the outset was service-connected lumbar strain, and degenerative disc disease of the lumbar spine L5-S1, spondylolisthesis with levoscoliosis. The Veteran stated he injured his low back in the Air Force while working on airplanes. He later strained his low back while working on a tire that weighed about 200 pounds. He then in 1987 had shooting pain while working at his job, for which he received worker's compensation, and had not worked since. On objective examination, flexion was to 15 degrees; extension was to 5 degrees; right lateral flexion was to 10 degrees, and left lateral flexion was to 15 degrees; right and left lateral rotation were to 0 degrees. The Veteran was unable to perform repetitive-use testing, as he indicated he would have too much pain if he tried to do so. There was functional loss of the thoracolumbar spine involving less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing. There was present localized tenderness or pain to palpation for the joints and/or soft tissue of the thoracolumbar spine. There was guarding and/or muscle spasm of the spine, with abnormal gait, and abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. There was present moderate left lower extremity radiculopathy. The Veteran had IVDS of the thoracolumbar spine, though without any incapacitating episodes over the previous 12 months due to IVDS. The Veteran's back condition was considered to have an impact on his ability to work, in that he was not suitable for physical labor, though he would be able to perform sedentary labor. The examiner further observed that while the Veteran complained of symptoms of radiculopathy, no neurological deficits were noted on examination. Also, while he had Intervertebral Disc Syndrome (IVDS), he had had no incapacitating episodes over the previous 12 months, meaning bedrest ordered by a physician. The May 2013 VA examiner further expressed the opinion that "it is less likely as not that the Veteran's DDD [degenerative disc disease] and DJD [degenerative joint disease] of the lumbar spine was incurred in or caused by the low back spasm and strain that occurred in March and June 1967. [The] Veteran did not have any structural changes noted on x-ray upon his discharge in 1969. [The] Veteran's structural changes were noted after he was evaluated for his on the job low back injury in 1987." The VA examiner further concluded that the "Veteran's SC lumbosacral strain is not causing any of Veteran's pain. [The] Veteran's pain is directly related to his DDD and DJD of his lumbosacral spine that was diagnosed after his back injury in 1987. ...It is this examiner's opinion that Veteran's DDD and DJD of the lumbar spine are not caused by or aggravated by the Veteran's SC lumbosacral strain." The Board has objectively considered the foregoing, and is ultimately constrained to deny the claim for increased rating beyond 10 percent for service-connected chronic lumbosacral strain. Essentially, whereas the Veteran does have a complex history of a low back condition which remains symptomatic, the best medical evidence available implicates the Veteran's nonservice-connected orthopedic disability of the thoracolumbar spine as the underlying causative favor, and not his service-connected chronic lumbosacral strain. In this regard, the Veteran is not without some symptomatology which on initial appearance meets the literal criteria for a 40 percent rating under the aforementioned General Rating Fomula for Diseases and Injuries of the Spine, at 38 C.F.R. § 4.71a -- for instance, his most recent May 2013 VA examination objective findings as to range of motion of the thoracolumbar spine; and overall, the finding of abnormal spinal contour, with attendance structural abnormality of the thoracolumbar spine. At one point on examination in November 2011 his IVDS was considered to have a significant number of incapacitating episodes, which would have substantiated the requirements for a 40 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5243; the subsequent examination findings of May 2013 show to the contrary. It still remains that the limitation of motion findings by themselves are significant. This all notwithstanding, however, the May 2013 VA examiner has clearly attributed the Veteran's actual present symptomatology of the low back to his nonservice-connected DDD and DJD of the lumbosacral spine, which the examiner explained was a structural orthopedic condition wholly unrelated to the service-connected chronic lumbosacral strain, as more of a general muscular ailment. The Board emphasizes from review of the claims file that the Veteran specifically has been denied service connection for DDD and DJD of the lumbosacral spine by a May 2013 RO rating decision, and he has not completed any appeal therefrom (he filed a timely Notice of Disagreement (NOD), but did not then respond to the RO's Statement of the Case (SOC)). Consequently, any disability that is attributable to said condition by definition is not a basis for service-connected compensation. As indicated, moreover, there is competent medical opinion evidence in this case ruling out a service-connected cause of present low back disability. In so finding, the Board is well aware of the principle that if unable to distinguish between service-connected and nonservice-connected medical impairment, VA should err on the side of the claimant and deem all symptoms of the disability compensable. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). See also, Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). Here, however, there is a principled, well-articulated medical rationale for making this very distinction. Thus, the Board is not left with any additional symptomatology otherwise directly attributable to service-connected chronic lumbosacral strain, and by implication, no basis upon which to award any increased evaluation under provisions of the VA rating schedule. Meanwhile, aside from the rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations also has been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's low back disability presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon limitation of motion with associated pain and/or discomfort fairly accounts for nearly all of the Veteran's symptoms as presented, including from his descriptions upon VA examination and on other occasions. To the extent the Veteran has any distinctly ratable neurological impairment, this has been recognized as lower extremity radiculopathy, but not associated with the underlying service-connected disability under review. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. The Board therefore is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for consideration of an extraschedular evaluation. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claim for a higher rating for chronic lumbosacral strain. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Service Connection for Bilateral Hip and Leg Conditions Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. See 38 C.F.R. § 3.310(b). See also, Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). In furtherance of this claim, the Veteran maintains that as a consequence of a service-related low back disability, his sciatic nerve is being pinched, causing pain to radiate down to his left leg. He avers that his bilateral hip pain and bilateral leg pain are secondary conditions to his service-connected lumbosacral strain. The Veteran's service treatment history is absent any reference to symptoms, diagnosis or treatment of a bilateral hip or leg condition. There is reference therein to some back problems. Following service discharge, a September 1971 RO rating decision indicates the grant of service connection for chronic lumbosacral strain. In June 1987 records reflect a post-service work-related back injury in January of that year when lifting a piece of equipment, with immediate onset of pain in the back radiating into the left lower extremity and associated with numbness of the foot. After a medical history review and physical exam, the impression was of spondylolytic spondylolisthesis, L5-S1. The treating physician indicated that the lifting stress of January 1987 was considered to have produced traumatic aggravation of a pre-existing condition of a developmental abnormality of the spine with scoliosis, leading to the disability diagnosed at that time. The prognosis for recovery was deemed poor. On VA Compensation and Pension examination of October 1987, the diagnosis was: "by history only, not clinically apparent, constant left low back pain of varying severity, always accompanied by left posterior thigh and calf pain, and frequently accompanied by global hypoesthesias left lower extremity; flexion is moderately severely limited by pain; there are no objective neurologic changes noted, only the subjective left long sock and lateral thigh hypoesthesias; present clinical findings apparently primarily originating from January 1987 injury, compatible muscle and ligament strain, x-rays are ordered." A July 1988 private orthopedic evaluation indicated a diagnosis of spondylolisthesis of L5, Grade I; left sciatic; and structural scoliosis, lumbosacral area. In connection with the instant claim, the Veteran underwent a March 2003 VA examination, during which he described lower back pain radiating to the left leg. On physical examination, in relevant part, he started complaining of pain in the left hip when the left leg was raised more than 50 degrees from the ground, and did the same on the right side when it was raised more than 60 degrees. The impression given was osteoarthritis of the spine. The VA examiner remarked that the Veteran had some neurological deficit, but his symptoms did not coincide with the pathology of what he had. The opinion was expressed that the Veteran's hip pain had no relation to lumbar strain, as lumbar strain was a temporary condition. The Veteran's November 2011 VA orthopedic examination included evaluation of his claimed bilateral hip condition. The diagnosis given was sciatic nerve radiculopathy. The VA examiner indicated that he did not find a primary hip abnormality or disease. It was believed that the left hip pain was radicular in nature from the Veteran's significant lumbar degenerative disc disease. The Veteran's "hip disorder" was not a primary expression of hip disease but represented lumbar radicular pain, especially on the left side. X-rays showed no evidence of a hip disorder. All hip symptoms were intimately associated with simultaneous/ contemporaneous lumbar back pain. The November 2011 examiner further stated as follows: It seems to be accepted that in 1966 the Veteran experienced a lumbosacral strain while in service. This injury did not show structural defects on x-ray. ...It also appears accepted that in January of 1987 the Veteran experienced an additional low back injury at his place of employment. X-rays shortly thereafter showed evidence of structural damage/disease of the lumbar spine. The Veteran also reports that his hip pain problems started shortly after that general time frame. This reviewer has spent a good amount of time reviewing this Veteran's claims file and other data. Given the lengthy history of this conflict of opinions, this reviewer is unable to establish a confident opinion as to whether the 1987 injury to the Veteran's lumbar spine was a new "independent" injury or was actually an exacerbation of a weakened lumbar structure associated with the pre-existing service-connected lumbar strain. Pursuant to a Board remand directive, a supplemental opinion was obtained in December 2012 regarding the subject of etiology of the condition claimed, providing that: It is less likely than not that the current hip and leg disorders was[sic] aggravated by the acute lumbosacral condition that occurred while in military service. My reasoning is based on a lack of medical evidence and nexus to the 1966 injury. Over the 20 years following separation and before the automobile accident, this extended timeline does not provide adequate medical evidence too[sic] clearly and unmistakably demonstrate a linkage to any hip/leg condition. Second, the current hip/leg discomfort is at least as likely as not to be a direct consequence of his natural aging process and the fact that he was in a major 1987 automobile accident injury as a civilian. It is also my opinion the current lack of radiographic evidence for bone and joint changes, normal muscle strength and reflexes associated with his limitation of motion are consistent with a natural aging process of the soft tissues. Third, I am in full agreement with [another VA examiner].... It is our opinion that the current hip/leg discomfort is less likely than not to be primary pain from the hip/leg but a referred pain from the lumbar radiculopathy, left > than right. Generally, speaking, the current lumbosacral condition is as least as likely as not aggravating the hip/leg. Specifically speaking, the claimed hip/leg condition is less likely than not proximately due to or aggravated by the Veteran's acute lumbosacral condition that incurred while in military service. Overall conclusion: In my opinion, the timeline of the current hip/leg condition, radiating lumbosacral radiculopathy, is at least as likely as not to be a natural, normal aging process and a direct consequence of his non-service connected lower back condition sustained as a civilian. There is no medical evidence to support the Veteran's claimed hip/leg condition for aggravation by the Veteran's service-connected portion of his chronic lumbosacral strain. Thereafter, pursuant to yet another Board remand directive to obtain a definitive opinion (in light of deficiencies of the prior opinion, such as purportedly indicating the relatively high "clear and unmistakable" evidence standard as a prerequisite to establish service connection), a May 2013 VA medical opinion was obtained indicating: "[the] Veteran's symptoms of radiculopathy are not proximately due to or alternatively aggravated by his SC chronic lumbosacral strain. It is attributable to his nonservice connected back disabilities. [The] Veteran developed symptoms of radiculopathy immediately after his on the job back injury in 1987.... Bilateral hip pain that he complains of is typical of individuals with spondylolisthesis due to irritation of the spinal nerves." The examiner further indicated at a subsequent point that "The Veteran's service-connected lumbosacral strain was related to muscle strain that resolves with rest.... [The] Veteran's injury in 1987 was not related to his muscle injury but related to his spinal structural changes." The Board finds that the criteria for service connection for bilateral hip and leg conditions are not met, and the claim must be denied. To begin with, the one current medical disorder the Veteran manifests which falls within the parameters of the hip/leg condition is bilateral sciatic radiculopathy. Whereas some treatment providers have also noticed the presence of hip pain, the existence of pain in and of itself does not constitute a compensable disability under the law. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Consequently, to start with the Veteran's claimed current disability for consideration consists of bilateral sciatic radiculopathy to the lower extremities. It must further to be shown to warrant service connection that this condition developed due either to service, or to an already service-connected disability. On the first theory, direct service connection, there is little to substantiate the claim, as lower extremity problems were not documented in service or for several years thereafter, nor does the Veteran generally contend that his sciatic neuropathy was directly incurred in service. The primary theory of recovery remains secondary service connection, i.e., whether the Veteran's sciatic radiculopathy developed from his service-connected chronic lumbosacral strain. On this subject, however, the medical evidence is clearly unfavorable. The December 2012 and May 2013 VA examiner both distinctly attributed the Veteran's sciatic neuropathy to his nonservice-connected orthopedic disability of the lumbar spine (DDD and DJD), rather than to the service-connected chronic lumbosacral strain. (This roughly parallels the preceding finding on the increased rating claim, that nearly all, if not all of the Veteran's present symptomatology involving the low back is the product of nonservice-connected factors.) The Board sees no evidence otherwise contravening the above opinions. The medical history if anything strongly associates the onset of radiculopathy with the Veteran's post-service occupational injury in 1987, which has been identified as the cause of nonservice-related orthopedic back disability, and not the muscular back strain condition associated with the service-connected back disability. The Veteran's own assertions have been given due consideration in this case, however, the association of sciatic radiculopathy with a particular component of a complex clinical picture of a low back disability is not a matter within the purview of lay observation, and is inherently best settled through resort to competent medical opinion, as in this case. This competent medical evidence effectively rules out service connection on a secondary basis. Therefore, the claim for service connection for bilateral hip and leg conditions must be denied. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). TDIU Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a) (2013). Disabilities resulting from common etiology or single accident or affecting both upper and lower extremities are considered as one collective disability for the purpose of determining whether these threshold minimum rating requirements are met. Provided a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of his service-connected disabilities. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extra-schedular consideration. While the procedures for assignment of a total disability rating on an extraschedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extra-schedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); see also Floyd, supra. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or his advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In addition, "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the Court has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), citing to VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (December 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). See also Ferraro, 1 Vet. App. at 332 (determining that substantially gainful employment suggests "a living wage"). In November 2009, the Veteran submitted VA Form 21-8940 (formal TDIU claim application) indicating that he had last worked fulltime in January 1987 as a machine operator, and that as of that date he had become too disabled to work due to his PTSD. The RO subsequently granted an increased schedular rating of 100 percent for the Veteran's PTSD, effective November 10, 2009 in a June 2010 rating decision. The issue of entitlement to a TDIU for PTSD was not addressed, as this issue was rendered moot by the 100 schedular rating that was assigned for PTSD. However, the present issue of entitlement to a TDIU based on his lumbosacral strain is raised on a derivative basis as part of his increased rating claim for lumbosacral strain with due considerations to the provisions outlined in Bradley v. Peake, 22 Vet. App. 280 (2008). See 75 Fed. Reg. 11230 (March 10, 2010) ("The logic of Bradley suggests that if a Veteran has a schedular total rating for a particular disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under 114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100-percent disability rating."). In December 2009, he underwent a VA Compensation and Pension examination for general medical evaluation. Following the objective clinical examination, the VA examiner opined that the Veteran's service-connected chronic lumbosacral strain and diabetes did not significantly affect his ability to work. The stated rationale was that the Veteran was working with these conditions without significant problems prior to the 1987 work-related back injury. The examiner further opined that the Veteran's nonservice-connected lumbar degenerative disc disease and spondylolisthesis with left radiculopathy did prevent him from participating in gainful employment in physical and sedentary occupations. The rationale was that the Veteran had not been able to return to work since the work-related back injury in 1987, he was very limited in physical activities due to the work-related back injury, and he had constant pain and use of pain medication which also prevented sedentary employment. A November 2011 VA orthopedic examiner indicated that the Veteran's thoracolumbar spine condition impacted his ability to work, in that the Veteran was unable to stoop, twist, bend, or stand for very long. Pain and pain medication limited concentration. However, a May 2013 VA examiner stated: "It is this examiner's opinion that it is less likely as not that Veteran's SC chronic lumbosacral strain renders him unable to secure or follow a substantially gainful occupation. Veteran was gainfully employed until his on the job low back injury in 1987.... Veteran was working full time prior to his injury, therefore his SC lumbosacral strain did not interfere with his ability to participate in gainful employment." In consideration of the evidence of record, the Board finds that the Veteran's service-connected disability does not preclude him from securing and following a substantially gainful occupation. The Veteran stopped working after his post-service accident in 1987 and medical examiners have determined that his lumbosacral strain does not preclude employment, but rather that the back disability that resulted from the post-service accident in 1987 was the cause of any inability to work full-time. Thus, while the Veteran's nonservice-connected back disabilities in conjunction with medical problems associated with his lumbosacral strain impair the Veteran's employability, nonservice-connected disabilities are not for consideration in this analysis. To the extent the lumbosacral strain affects the Veteran's employment, the assigned schedular rating for the disability compensates the Veteran for such impairment. Thus, a TDIU is not warranted. See 38 C.F.R. § 4.16. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An evaluation higher than 10 percent for chronic lumbosacral strain is denied. Service connection for bilateral hip and leg conditions, to include as secondary to service-connected chronic lumbosacral strain, is denied. Entitlement to a TDIU due to service-connected disability is denied. ______________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs