Citation Nr: 1328627 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-07 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for a low back strain. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected low back strain. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. A January 2009 rating decision granted service connection for a low back strain and assigned an initial 20 percent disability rating, effective from August 9, 2006. A June 2010 rating decision denied entitlement to a TDIU. The Veteran testified at a video conference hearing in February 2013. A transcript of the hearing is associated with the claims folder. In April 2013, the Veteran's attorney submitted to the Board additional evidence for consideration in connection with the claims on appeal. A waiver of RO jurisdiction for this evidence was received. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2013). FINDINGS OF FACT 1. Prior to April 3, 2013, the Veteran's lumbar spine disability was manifested at worst by disability tantamount to forward flexion limited to 45 degrees. 2. From April 3, 2013, the Veteran's lumbar spine disability has been tantamount to disability characterized by forward flexion limited to 30 degrees. 3. The Veteran completed high school and has worked as an automobile technician. 4. With consideration of service-connected low back strain only, the Veteran is not incapable of securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. For the time period prior to April 3, 2013, the criteria for an initial rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2013). 2. With resolution of the benefit of the doubt in the Veteran's favor, beginning April 3, 2013, the criteria for a rating of 40 percent, but no higher, have been met for the low back disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2013). 3. The criteria for entitlement to a total disability rating due to service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16(a), 4.18 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. As for the service-connected low back disability decided herein, the claim for a higher disability rating is a "downstream" issue in that it arose from an initial grant of service connection. Prior to the January 2009 rating decision, the RO issued a letter in August 2006 that advised the Veteran of the evidence necessary to substantiate his claim for service connection and of his and VA's respective obligations with regard to obtaining evidence. As previously noted, in the January 2009 rating action, the RO granted service connection for a low back strain and rated this disability as 20 percent disabling, effective August 9, 2006. Importantly, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim for service connection has been more than substantiated, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice requirements. Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the claim for a TDIU, the RO provided notice to the Veteran in a September 2009 letter regarding the evidence necessary to substantiate his claim for a TDIU and an increased rating and of his and VA's respective obligations with regard to obtaining evidence. The August 2006 and September 2009 letters also advised him of how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations In addition, the RO obtained the Veteran's service treatment records, post-service private treatment records, records from the Social Security Administration, VA examinations and medical opinions, and lay statements and hearing testimony. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims file. Accordingly, VA has no duty to inform or assist that was unmet with respect to obtaining all available identified medical records. VA examinations with respect to the low back claim on appeal were obtained in September 2007, October 2009, and April 2012. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained here are sufficient as they considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the rating criteria. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues being decided on appeal. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that this issue involves the Veteran's dissatisfaction with the initial rating for his disability assigned following the grant of service connection, and staged ratings are to be considered. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran's low back disability has been rated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. For clarity, the Board notes that the Veteran's service treatment records reflect that he was evaluated in October 1972 for complaints of low back pain and found to have congenital anomalies of the L4 and L5 vertebrae. In a November 2008 medical opinion, the VA neurologist who conducted a September 2007 VA spine examination opined that the Veteran's reported spine strain sustained when he fell onto a bunk in 1972 had permanently moderately aggravated his congenital anomaly. Diagnostic Code 5237 provides that disabilities manifested by lumbosacral strain are rated under the General Rating Formula for Diseases and Injuries of the Spine. (The Board notes that x-ray evidence has shown some indication of arthritis, which is also rated on the basis of the general rating formula in accordance with Diagnostic Code 5242. Likewise, the record reflects assessments of disc disease in the lumbar spine. Disc disease disability is ratable under the general rating formula, like arthritis, but may in the alternative be rated under criteria for intervertebral disc syndrome found at Diagnostic Code 5243. The Veteran has not been service connected for arthritis or disc disease. General Rating Formula for Diseases and Injuries of the Spine: (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): Rating With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10 Note: (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note: (2) (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 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 cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note: (6) Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a (2013). 38 C.F.R. § 4.71a, PLATE V (2013). Because the Veteran's claim for a TDIU based on his service-connected low back disability is intertwined with the claim for a higher disability rating, the Board herein outlines the evidence pertinent to both claims. An August 2005 lumbar spine MRI report reflects that the Veteran was evaluated for coccygeal pain with a question of fracture. Reported findings included a congenital fusion at L4-5 with a congenitally short pedicle, particularly on the right; degenerative disc space narrowing at L5-S1; and mild degenerative disc desiccation at L3-4. Treatment records from C. Crute, M.D., dated from June 1997 to October 2007 reflect intermittent evaluation and treatment for complaints of low back pain, in addition to coccyx pain and other medical problems. In an August 2005 short-term disability claim statement, Dr. Crute indicated that the Veteran was unable to work since July 2005 due to "severe pelvic pain/coccyx area; acute, persistent coccydynia." Dr. Crute described the Veteran's limitations as inability to lift, bend, sit, or stand since July 2005. A September 2005 private treatment record from Orthopaedic Associates reflects that the Veteran reported a history of some low back difficulties, but primarily sacral and coccyx region pain. Physical examination revealed full range of motion of the lumbar spine. The impression included coccydynia for which he received a coccygeal injection and lumbar segmental degenerative disease - severe. An October 2005 follow-up note described a failure of segmentation at the L4-5 level on MRI study and documented reported symptoms that were consistent with coccydynia. An October 2005 examination report from C. Macleod, M.D., reflects the Veteran's complaint of chronic rectal pain for two years and his statement that he had not worked since July 2005 due to the rectal pain. He reported that during evaluation for his complaints, he underwent and MRI and plain films that suggested some degenerative changes of the lumbar spine. Following a physical examination, the assessment was chronic idiopathic anal pain/levator syndrome. A November 2005 initial evaluation by K. Liberi, M.S., M.P.T., reflects the Veteran's report of having pain with bowel movements deep underneath the coccyx region, dealing with constant rectal/coccyx-related pain, and the pain never went away. He reported seeing many specialists and eventually testing revealed coccydynia. He described current mild discomfort under the coccyx bone, mostly on the left side. He indicated that he worked as an auto technician and increased strenuous work lifting heavy loads and being on his feet for a while aggravated his pain. He disclosed that he was out of work for one month after falling onto his tailbone and buttock on the left side many years ago and that he had a metal pipe driven through the L4-5 region when he was in the Army. However, he reported "only occasional back pain." On examination, he had flattened lumbar spine, flexion within normal limits, right side-bending limited by 25 percent (right lateral flexion to 20 degrees [rounded to the nearest five degrees]), left side-bending limited by 50 percent (left lateral flexion to 15 degrees), extension limited by 50 percent (extension to 15 degrees), muscle imbalance in the lower lumbar spine, and right concave lower lumbar spine noted. Subsequent records dated through January 2006 pertained to physical therapy for chronic rectal pain/levator ani syndrome. A February 2006 initial evaluation report from K. Liberi, M.S., M.P.T., indicated that the Veteran presented for low back pain intervention. He stated that he had been having increasing difficulty at the end of the workday as an auto technician due to increased back pain. He described job duties that included working in ergonomically incorrect positions under dashboards, prolonged bending, and twisting. Objective findings included flat lumbar spine, flexion within normal limits, right side-bending limited 75 percent (right lateral flexion to approximately 10 degrees), left side-bending limited by 50 percent (left lateral flexion to 15 degrees), and extension to 15 degrees. During an initial consultation with S. Waecker, D.O., in February 2006, the Veteran related that he had been diagnosed with coccydynia and his pain became severe enough that he was out of work for four months, but he finally returned to work in November 2005. He also indicated that if he does have a bad day, his low back is painful and his upper back can spasm. He further reported having pain in the right lower ribs, left upper back, and bilateral hips. He reported working as an automobile technician, usually on large vehicles and trucks. The assessment included somatic dysfunction to the lumbar spine and low back and thoracic pain. Additional records from Dr. Waecker dated from February 2006 through September 2007 reflect that the Veteran received ongoing osteopathic manipulative treatment and trigger point injections for low back pain, myofascial pain, levator ani syndrome and coccydynia, pelvic pain, headaches, insomnia, and cervical spine spondylisthesis. The impression of an April 2006 lumbar spine x-ray was probable fusion of the L4-5 intervertebral disc space appears likely on a developmental basis; there is stable grade 1 anterolisthesis. Some degenerative narrowing of the L5-S1 disc without instability was also noted. In June 2006, he reported worsening low back pain due to increased work load. Dr. Waecker recommended short term disability and counseled him regarding disability and insomnia. She provided a work excuse in June 2006 indicating that the Veteran had a medical condition for which he was out of work for two months until August 2006 and that he would be reevaluated in July 2006. A September 2006 record noted that the Veteran had applied for SSA disability benefits. A January 2007 work excuse note indicated that the Veteran had been out of work from August 2006 and would be out "for medical reasons" through August 2007. The Veteran was evaluated by a private neurosurgeon, J. Pier, M.D., in July 2006. He reported difficulties with multiple pain complaints over the years, including back pain that had significantly increased over the last year without trauma. He identified his work as an automobile technician, which was very physically demanding, and indicated that he was currently on a leave of absence from work due to back pain. He described low back pain, bilateral gluteal pain, and rectal pain increased by lifting, bending, and strenuous activity. On examination, there was limitation of range of motion to the lumbosacral junction with pain provoked by lumbar extension more than flexion and significant pain to palpation over the midline at L5-S1. Neurologically, he was intact to include light touch, pinprick, motor examination, and deep tendon reflexes. His gait was non-antalgic. The impression was chronic pain syndrome inclusive of degenerative segment at L5-S1 with segmental pain; levator myofascial discomfort and possible levator ani syndrome; and right rib/flank pain likely related to instability at right T11 and possibly T10. Dr. Pier discussed the possibility of a lumbar fusion at L5-S1; however, he commented that he was "still not sure this would allow [the Veteran] to return to employment activities and he may be limited from his work as an auto technician going forward." During a follow-up visit in August 2007, the Veteran complained of continued low back pain with added thoracic and cervical discomfort. Dr. Pier strongly advised that once a disability determination has been made that the Veteran attempt to get back to some activity, inclusive of either volunteering or part-time employment. He commented that "full-time employment is likely going to be difficult." The Veteran was afforded a VA spine examination in September 2007. He reported constant daily low back pain without radiation and decreased motion, stiffness, spasms, and severe flare-ups every two to three weeks lasting one to two days. Reported alleviating factors were lying flat and oxycodone. He denied fatigue or weakness. He reported that he had been unemployed due to back pain for less than one year. On examination, there was bilateral spasm of the thoracic sacrospinalis, pain with motion, and tenderness; there was no atrophy, guarding, or weakness. The examiner indicated that muscle spasm and tenderness were not severe enough to be responsible for abnormal gait or abnormal spinal contour. Posture was reported as normal and gait was antalgic. Detailed motor, sensory, and reflex examinations were within normal limits. Thoracolumbar range-of-motion testing revealed flexion to 55 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, right rotation to 45 degrees, and left rotation to 30 degrees. The examination report reflects that pain on motion began and ended at the endpoint of each plane of motion. Following repetitive use testing, there was pain, but no additional loss of motion. The diagnosis was low back strain. The examiner indicated that the low back strain had significant effects on the Veteran's usual occupation, including decreased mobility, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, and pain. Additional private treatment records from S. Collins, D.O., (formerly S. Waecker, D.O.) dated from January 2008 through February 2013 reflected ongoing evaluation and treatment for numerous medical complaints, including low back pain. Records from the Social Security Administration were received by VA in June 2008. The Veteran indicated that he had worked full time as an automobile technician since 1977, but became too disabled to work in June 2006 due to back pain, levator syndrome, and arthritis. He reported that 10 percent of his job was spent supervising people. He denied working fewer hours, changes to his job duties, or other job-related changes such as attendance or help needed due to his claimed disabilities. In a "report of pain or other symptoms," he stated that "light activity is fine with no lifting, or heavy strenuous work." Medical records associated with his SSA claim were duplicative of those associated with his VA claims file. A letter associated with the SSA records from the Service Department Manager at the Veteran's workplace detailed the Veteran's responsibilities since 1993 as a technician, including new vehicle inspections and taking over the sales department to respond to customers' calls. The manager reported that starting in early summer of 2005, the Veteran "was having pain from an old injury in his lower back area" and was out of work for this injury from July 2005 through November 2005. When he returned to work, he was not able to perform any heavy lifting and was obviously in a lot of pain. The manager stated that he tried to accommodate the Veteran with different work however, he was still restricted. He reported that the Veteran was not able to perform his duties because of his injury and left the job permanently in June 2006. In a May 2008 decision, an administrative law judge found that the Veteran was disabled for SSA purposes since June 2006 due to degenerative disc disease, congenital fusion at L4-5, chronic pain syndrome, diverticulitis, and levator ani syndrome with rectal pain. A June 2008 SSA Disability Determination and Transmittal indicated that the Veteran was disabled for SSA purposes based on the primary diagnosis of back disorder discogenic and degenerative and the secondary diagnosis of diverticulitis. An informal claim for a TDIU was received from the Veteran's attorney on the Veteran's behalf in August 2009 along with duplicate medical evidence. In the Veteran's September 2009 formal TDIU application, he indicated that he completed high school and worked full-time as an automobile technician for the same company from 1993 until he left June 2006 due to his back disability and that he had not received education or training since becoming too disabled to work. The Veteran was afforded a VA spine examination in October 2009. He reported chronic severe low back pain without any radicular component and without any incapacitating episodes as defined by VA. He denied flare-ups, indicating that he had day-to-day discomfort instead. He identified associated symptoms to include stiffness, spasm, and decreased motion. He denied associated bladder or bowel functional impairment, use of a walking or assistive device, or any additional trauma. Physical examination revealed a very stiff gait, marked flattening of the lumbar lordotic curve, moderately severe tightening of the lumbar paravertebral muscles, and percussion tenderness over the lower lumbar region. Lumbar spine range of motion testing revealed flexion to 45 degrees and to 80 degrees with pain at the endpoint, extension from 0 to 30 degrees with pain throughout motion, side bending to 30 degrees and to 40 degrees bilaterally with pain at end point, and rotation to 40 degrees and to 45 degrees bilaterally with pain at end point. Repetitive range of motion testing did not alter range of motion or induce additional pain. Muscle strength and sensory testing of the lower extremities were both normal. Review of imaging studies identified congenital fusion at L4-5 with degenerative disc changes above and below the fused area with associated degenerative joint disease. Following a review of the claims file and physical examination, the examining physician commented that it was his opinion that the Veteran was not capable of maintaining occupational activity in his usual occupation secondary to difficulties described in the examination report. An October 2009 progress note from K. Caldwell, M.D., documents the Veteran's report of low back pain for years and regularly walking 30 minutes daily for exercise. He had a normal gait on examination. Information was received from the Veteran's employer in January 2010 and indicated that the Veteran worked full time as a service vehicle technician and new vehicle prep from 1993 to June 2007. The representative explained that the Veteran was moved from a technician to new car prep, which was easier and lighter work to accommodate his disability. After one year in the job, he could not go back as a technician and the company was restructuring and eliminating the full-time prep position. The representative also enclosed payroll data from July 2006 to June 2007 and explained that during the time that the Veteran was out due to his disability, the benefits that were already earned were paid in increments at the Veteran's request. During an April 2012 VA spine and general medical examination by the same physician who conducted the October 2009 VA examination, the Veteran stated that his low back disability had become progressively painful, but did not report flare-ups. Reported examination findings included lumbosacral articulation discomfort on deep palpation, guarding or muscle spasm of the thoracolumbar spine severe enough to result in abnormal gait or abnormal spinal contour, 4/5 muscle strength testing (active movement against some resistance), no muscle atrophy, deep tendon reflexes that were hyperactive in the knees and normal in the ankles, and normal sensory examination. There was no radicular pain or any other signs or symptoms due to radiculopathy, and there were no other neurologic abnormalities related to the thoracolumbar spine. The examiner indicated that the Veteran had intervertebral disc syndrome (IVDS), but no incapacitating episodes over the past 12 months due to IVDS. Low back range-of-motion testing revealed flexion to 75 degrees with pain beginning at 45 degrees, extension to 0 degrees with pain, right lateral flexion to 20 degrees with pain beginning at 20, left lateral flexion to 25 degrees with pain beginning at 20 degrees, and lateral rotation to 30 degrees bilaterally with pain at 20 degrees bilaterally. The examiner reported that much of the Veteran's pain bending to the right related to right lower rib pain unrelated to his low back dysfunction. Following three repetitions of range-of-motion testing, the Veteran had additional limitation in range of motion, which was reported as an additional 5 degree loss on right lateral flexion, left lateral flexion, and left lateral rotation; and right lateral rotation to 15 degrees. The examiner also identified less movement than normal; excess fatigability; pain on movement; and interference with sitting, standing, and/or weight-bearing as contributing factors of functional loss or impairment after repetitive use. Following a review of the claims file, including imaging studies that documented arthritis, and a physical examination, the examiner opined that the Veteran's chronic low back dysfunction would in and of itself prevent the Veteran from obtaining and maintaining gainful employment in his usual occupation. He elaborated that the Veteran's usual occupation involved heavy lifting, repetitive bending, and prolonged weightbearing, which would significantly [in]crease his low back pain preventing employability. In an addendum medical opinion, the April 2012 VA examiner indicated that he reviewed the Veteran's claims file and the conflicting medical evidence regarding employability. He opined that the Veteran's low back dysfunction would not prevent him from obtaining or maintaining gainful employment in a sedentary position. The examiner reasoned that while the Veteran's low back dysfunction was such that he would not be able to work at his usual occupation as a mechanic/repairman, his low back dysfunction had not deteriorated to the point sedentary tasks would be precluded. In June 2012, the Veterans Service Center Manager referred the Veteran's claim for an increased rating and a TDIU to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16(b). During a July 2012 visit with S. Collins, D.O., the Veteran reported that his back pain was there and "stays level." An October 2012 memorandum from the Director of Compensation Service details his consideration of an extra-schedular evaluation for the lumbar spine disability and entitlement to TDIU benefits on an extra-schedular basis. After reviewing the evidence of record, the Director noted that the evidence does not show any hospitalizations or surgical procedures performed on the lumbar spine; evidence from a prior employer documents that the Veteran's job duties were changed to lighter duties, and then he left the position due to physical problems; and the evidence does not clarify which physical conditions impacted his employment. Entitlement to an extra-schedular evaluation for the lumbar spine degenerative disc disease was denied as there were clearly no unusual or exceptional disability patterns, such as marked interference with employment or frequent periods of hospitalization, that renders application of the regular rating criteria impractical. The Director also concluded that the evidence does not demonstrate that the Veteran is unable to secure and follow a substantially gainful occupation solely by reason of his service-connected disability. The evidence shows that the Veteran's lumbar spine disease has been causing some functional restrictions and would affect his ability to perform physically demanding work. However, evidence does not show that his is unable to follow a substantially gainful occupation due solely to his low back disability. The Director observed that the VA medical opinion does not indicate that the Veteran cannot work due to service-connected disability, and SSA disability entitlement was granted based on the lumbar spine degenerative disc disease and other conditions. Therefore, the Director found that entitlement to TDIU benefits on an extra-schedular basis was not established. At the February 2013 hearing, the Veteran's attorney asserted that the 20 percent rating for the Veteran's low back disability did not take into account his nerve pain, which was quite severe and had prevented him from working since June 2006. The Veteran testified that he has low back pain that radiates to his upper spine and is worse with sitting. He denied any numbness except in his right leg. He stated that he has right leg burning pain, numbness, and tingling extending to his ankle, but indicated that his back pain does not radiate down to either of his legs. He testified that Dr. Collins oversees everything and had not mentioned any future surgery for his back. He stated that he had never thought about a lifting limit, but estimated that he could lift about 5 pounds. He also mentioned medical problems with his neck, ribs, pelvis, headaches, and surgery below his right knee possibly on his veins. During a February 2013 visit with S. Collins, D.O., the Veteran's complaints included low back pain with a 9/10 pain level several times per week. He was observed to be in no acute distress and moved fluidly from standing to sitting, sitting to standing, sitting to supine, and supine to sitting. He denied any changes in bowel or bladder function, swelling in joints, numbness or tingling or changes in strength in the arms or legs. An April 3, 2013 private orthopedic examination report by F. Graf, M.D., an orthopaedic surgeon, and addressed to the Veteran's former attorney, who is a colleague of his current attorney, indicates that Dr. Graf reviewed the Veteran's history of a reported injury during military service and post-service medical records. On physical examination, range of motion of the lumbosacral spine, rounded to the nearest five degrees, was reported as forward bend (flexion) to 30 degrees, extension to 0 degrees, right lateral flexion to 10 degrees, left lateral flexion to 20 degrees, and lateral rotation to 25 degrees bilaterally. There was also pain on palpation of the lumbar spine at L4-5 and L5-S1. Other examination findings pertained to the cervical spine. Neurological findings revealed inaccuracies in ability to perform various movements with eyes closed. The diagnoses were chronic cervical and thoracolumbar pain with restricted ranges of motion; chronic pain syndrome cervical and thoracolumbar; probable multiple sclerosis with patient stating positive family history of MS. Dr. Graf opined that the Veteran's orthopaedic problems are considered to be causally related to the service-connected incident/injury 1973 with the Veteran meeting the criteria of sustained episode of spinal pain referencing multiple spinal segments such that he has 100 percent disability. Dr. Graf noted that the Veteran had been out of work since 2006 by reason of his musculoskeletal symptoms and pain. The Board has considered the medical and lay evidence of record, but finds that for the time period prior to April 3, 2013 a preponderance of the evidence is against the claim for an initial rating in excess of 20 percent for a low back strain. The lumbar spine disability has been manifested at worst by flexion to 45 degrees. The Board notes that subsequent VA examination findings are consistent with those in September 2007. In October 2009 and April 2012 the Veteran was able to forward flex to 80 and 75 degrees, respectively, on at least one repetition, but was limited to flexion to 45 degrees with pain at the endpoint on one repetition in October 2009. These findings are consistent with the 20 percent rating in effect for the lumbar spine disability. A higher rating is not warranted prior to April 3, 2013 because the objective medical evidence does not reflect forward flexion of the thoracolumbar spine 30 degrees or less; or favorable or unfavorable ankylosis involving the thoracolumbar spine. The Board emphasizes that despite the Veteran's subjective complaints of chronic pain, decreased motion, and stiffness, the 20 percent rating assigned for the low back strain appropriately compensates the Veteran for the extent of any functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. See 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. In this case, the September 2007, October 2009, and April 2012 VA examination reports reflect that the Veteran was able to accomplish repetitive low back range-of-motion testing. In September 2007 and October 2009, his range of motion of his back was not further limited by pain following repetition; nor was there evidence that range of motion was affected by fatigue, weakness, lack of endurance, or incoordination. On repetitive lumbar spine range-of-motion testing in April 2012, the Veteran had additional limitation in range of motion in lateral flexion and lateral rotation, bilaterally, and there was reported evidence of excess fatigability; pain on movement; and interference with sitting, standing, and/or weight-bearing as contributing factors of functional loss or impairment after repetitive use. However, even considering his impairment following repetitive motion, the medical findings remained consistent with no higher than a 20 percent rating based on guarding or muscle spasm of the thoracolumbar spine severe enough to result in abnormal gait or abnormal spinal contour. Therefore, a higher rating would not be assignable for the lumbar spine disability based on any functional loss due to limited or excess movement, pain, weakness, excess fatigability, and/or incoordination. Resolving reasonable doubt in favor of the Veteran, the Board finds that for the time period from April 3, 2013 a rating of 40 percent, but no higher, is warranted for the Veteran's low back disability. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). On private orthopaedic examination on April 3, 2013, the Veteran's low back disability was manifested by forward flexion to 30 degrees (reported as forward bend 29 [degrees]). This finding is consistent with a 40 percent rating. A higher rating is not warranted, however, because the medical evidence does not reflect any ankylosis of the thoracolumbar spine. Similarly, a higher rating is not warranted based on factors outlined in 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, because the examination report did not discuss these factors. For the foregoing reasons, the Board finds that the most probative and credible evidence does not support the assignment of an initial rating in excess of 20 percent for the lumbar spine disability prior to April 3, 2013 or in excess of the awarded 40 percent rating from April 3, 2013. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, entitlement to higher ratings than those assigned and awarded for a low back strain is not warranted. In reaching the conclusions above, 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 for a rating higher than 20 percent prior to April 3, 2013 or higher than 40 percent from April 3, 2013, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). In order to establish a total disability rating based upon individual unemployability (TDIU) due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). The Veteran is service connected for a low back disability, rated as 20 percent disabling prior to April 3, 2013, and now as 40 percent disabling from April 3, 2013. Thus, the Veteran does not meet the schedular requirements for a TDIU due to service-connected disability under 38 C.F.R. § 4.16(a), and the claim for TDIU benefits under this provision must be denied. The Board acknowledges the various medical opinions regarding the Veteran's employability. However, as the medical evidence does not support the minimum schedular requirements for a TDIU, those opinions were appropriately considered by the RO when referring the Veteran's case for extra-schedular consideration. As noted above, the Veteran's the case was referred and the claims file was forwarded to the Director of Compensation and Pension Service (C & P) in June 2012. In October 2012, the C & P Director reviewed the evidence in the claims file and noted that the Veteran had not been employed since June 2006 and was in receipt of SSA disability benefits based on his back disorders and diverticulitis. The C & P Director found that the evidence in the Veteran's case did not establish that his service-connected low back disability was more disabling than contemplated by the current schedular rating. The C & P Director determined that the Veteran was not entitled to an evaluation in excess of 20 percent for low back strain on an extra-schedular basis under 38 C.F.R. § 3.321(b). In addition, the C & P Director found that the Veteran was not entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). The C & P Director found that the Veteran had been diagnosed with nonservice-connected disabilities, including multilevel cervical spine degenerative disease with protrusion at C4-5 with chronic myofascial pain, levator syndrome, and diverticulitis. The C & P Director also observed that while the Veteran's job duties were changed to lighter duties, the evidence from the employer did not clarify which physical conditions impacted his employment. Finally, the C & P Director also found that the evidence did not show any hospitalization or surgical procedures for the spine, or an unusual or exceptional disability pattern that rendered application of the regular rating criteria impractical. Regarding the assignment of an extraschedular disability rating for the low back disability, the regulation in question provides that 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 an extra-schedular 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). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court addressed at length the extra-schedular provisions of 38 C.F.R. § 3.321(b). The Court held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Id. at 115. The first step or element is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, 22 Vet. App. at 115. Therefore, initially, 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. Id. This task is to be performed by the RO or the Board. Id. If the first element is met, the second step or element is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Thun, 22 Vet. App. at 116. Such factors include "marked interference with employment" or "frequent periods of hospitalization." Id. This task is also to be performed by the RO or the Board. Id. If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director of [C & P] for completion of the third step or element - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Court has held that neither the RO nor the Board is permitted to assign an extra-schedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. Anderson v. Shinseki, 22 Vet. App. 423, 426 (2008) (citing Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). As noted previously, the RO forwarded the claims file to the C & P Director; that is, the case was referred to the Director for consideration of entitlement to an extra-schedular rating for the Veteran's service-connected low back disability. The C & P Director determined that the Veteran was not entitled to an evaluation in excess of 20 percent for lumbosacral spine degenerative disc disease on an extra-schedular basis under 38 C.F.R. § 3.321(b). The Board has no authority to award a higher rating on an extra-schedular basis or compel the C & P Director (or the Under Secretary for Benefits) to do so. To explain further, the United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed such a matter when it reviewed and affirmed the Court's Thun decision. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Significantly, the Federal Circuit's Thun decision was also subsequent to the Court's decision in Anderson, where the United States Court of Appeals for Veterans Claims concluded that there was no restriction on the Board's ability to review the denial of an extraschedular rating. The Federal Circuit expressly stated that "only the Under Secretary [for Benefits] and the [C & P] Director have the authority to award an extra-schedular rating." Thun, 572 F.3d at 1370. The Federal Circuit found that, at a minimum, the ROs and the Board were intended to play some role in evaluating a claim for an extra-schedular rating. Id. However, "[p]ermitting the regional offices and the Board to issue a 'field station submission' in which they recommended extra-schedular consideration still reserves to the Under Secretary and the Director the ultimate authority to 'approve' those recommendations based on whether the Veteran should receive an extra-schedular rating 'to accord justice.'" Id. The Federal Circuit, in fact, stated that the Court held that "while the Under Secretary for Benefits and the Director of the Compensation and Pension Service are the only individuals authorized to assign an extra-schedular rating, [ROs] and the Board of Veterans' Appeals may conduct initial screening of disability claims and may refer . . . only those claims that meet two of the three regulatory criteria for extra-schedular consideration." Thun, 572 F.3d at 1367 (citing Thun, 22 Vet. App. at 111). Lastly, the Federal Circuit stated that its interpretation did not restrict the opportunity for judicial review." If the regional office or the Board makes factual findings adverse to the claimant with regard to the extra-schedular claim, those findings will be reviewable by the Veterans Court . . . just as would be the case if those findings were made by the Under Secretary or the Director." Thun, 572 F.3d at 1371. The Board finds that the Federal Circuit's interpretation of the extra-schedular provisions under 38 C.F.R. § 3.321(b), also applies to the provisions under 38 C.F.R. § 4.16(b), as it holds that only the C & P Director (or Under Secretary for Benefits) has the authority to award an extra-schedular rating. The concurrence opinion in Anderson, although addressing a different aspect of the extra-schedular process, provided some insight into why the Federal Circuit's holding is the appropriate result. The concurrence noted that the delegation of authority for the Director of C & P to assign an extra-schedular rating is appropriate, given that the Director of C & P has been delegated the authority to draft the rating schedule, based on "as far as practicable, upon average impairments of earning capacity resulting from such injuries in civil occupations." Anderson, 22 Vet. App. at 431 (Schoelen, J., concurring) (citing 38 U.S.C. §§ 501(a), 1155; 38 C.F.R. §§ 2.6(b)(1), 3.100)." This makes the Director of C & P uniquely suited to determining what extraschedular rating level is warranted. On the other hand, the RO and the Board have expertise in applying facts of each respective case to the rating schedule." Id. (citing Moore v. Nicholson, 21 Vet. App. 211, 218 (2007)). The role of the Board is to apply the laws and regulations to the facts of the case. See 38 U.S.C.A. § 7104 (West 2002). The provisions of 38 C.F.R. § 4.16(b) allow for the submission of the claim to the Director of C & P for extra-schedular consideration if a veteran is unemployable by reason of service-connected disabilities, but fails to meet the percentage standards set forth under 38 C.F.R. § 4.16(a). The role of the Board is not to determine whether an extra-schedular rating should ultimately be assigned, but rather whether the veteran is deemed unemployable despite not meeting the requisite criteria set forth under 38 C.F.R. § 4.16(a). In other words, the role of the Board is to determine whether the claim is appropriate for submission to the Director of C & P. The authority to decide whether a claimant is entitled to an extra-schedular rating is entrusted to the Director or Under Secretary, not the Board. Cf. Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (only the Secretary, and not the Court or the Board, has the authority to award equitable relief under 38 U.S.C.A. § 503(a)). In sum, with respect to the assignment of an extra-schedular rating and a TDIU on an extra-schedular basis, only the Under Secretary for Benefits and the C & P Director have been delegated the authority to award the extra-schedular rating or a TDIU on an extraschedular basis. Thun, 572 F.3d at 1370. In the Veteran's case, because the Board does not possess the authority to accord justice (or have any basis for arriving at an equitable determination) by awarding an extra-schedular rating or a TDIU on an extraschedular basis, there is no basis for the Board to review the C & P Director's decision as of the date it was made. As for evidence presented since that date, and as noted above, the Board has awarded a 40 percent rating for low back strain. Even this rating does not meet the schedular criteria under § 4.16(a). Nevertheless, the Board finds that there is no basis for again referring the case for extraschedular consideration under either 38 C.F.R. § 3.321 or 38 C.F.R. § 4.16(b). The symptoms and problems experienced as a result of the low back strain are all contemplated by the rating criteria themselves, and the record does not reflect that the Veteran is unemployable. Indeed, the evidence described above shows that he remains employable for sedentary work. Consequently, referral for extraschedular consideration is not warranted. ORDER For the period prior to April 3, 2013, a rating in excess of 20 percent for low back strain is denied. From April 3, 2013, a rating of 40 percent for low back strain is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected low back strain is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs