Citation Nr: 1329642	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  10-08 020	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, 
Nevada


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 
percent for herniated lumbar discs at L2-L3 and L4-S1 prior 
to December 6, 2011, and to a disability rating in excess of 
40 percent from December 6, 2011.

2.  Entitlement to a total disability rating based on 
individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	National Association of County 
Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Orfanoudis, Counsel


INTRODUCTION

The Veteran had active service from July 1984 to February 
1988, from January 16 to January 23, 1991, and from 
September 2001 to May 2003.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a December 2008 rating decision of 
the Department of Veterans Affairs (VA), Regional Office 
(RO), in Reno, Nevada, that continued a 10 percent 
disability rating for the Veteran's service-connected 
herniated lumbar disc at L2-3 and L4-S1.

In September 2010, the Veteran testified at a video 
conference hearing over which the undersigned Acting 
Veterans Law Judge presided.  A transcript of that hearing 
has been associated with his claims file.  The provisions of 
38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA 
employees, including Board personnel, in conducting 
hearings: the duty to explain fully the issues and the duty 
to suggest the submission of evidence that may have been 
overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  
During the hearing, the undersigned clarified the issue on 
appeal and inquired as to the nature and severity of the 
Veteran's asserted symptoms.  The Veteran was offered an 
opportunity to ask the undersigned questions regarding his 
claim.  The Board, therefore, concludes that it has 
fulfilled its duty under Bryant. 

This matter was previously before the Board in November 2011 
and November 2012 wherein it was remanded for additional 
development.  It is now returned to the Board.  As will be 
discussed further herein, the Board finds that the agency of 
original jurisdiction (AOJ) substantially complied with the 
remand orders, and no further action is necessary in this 
regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105   
(2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) 
(remand not required under Stegall v. West, 11 Vet. App. 268 
(1998), where the Board's remand instructions were 
substantially complied with), aff'd, Dyment v. Principi, 287 
F.3d 1377 (2002).

During the pendency of this appeal, by rating action dated 
in July 2012, the RO determined that the service-connected 
herniated lumbar disc at L2-3 and L4-S1 warranted a 40 
percent disability rating, effective as of December 6, 2011.  
Applicable law provides that absent a waiver, a claimant 
seeking a disability rating greater than assigned will 
generally be presumed to be seeking the maximum benefit 
allowed by law and regulation, and that a claim remains in 
controversy where less than the maximum available benefits 
are awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  The 
Veteran has not withdrawn the appeal as to the issue of a 
disability rating greater than assigned, therefore, the 
issue remains in appellate status.       

The Board notes that during the pendency of this appeal, the 
Veteran was also awarded service connection for lumbar 
radiculopathy of the lower extremities, and that the 
disabilities have each been rated as 10 percent disabling, 
effective December 6, 2011, and 20 percent disabling 
effective February 28, 2013.  The record before the Board 
does not reflect that the Veteran has disagreed the  
determinations.  No appeal regarding the grant of service 
connection or the assigned disability ratings is before the 
Board at this time.

The Board also notes that on VA examination in February 
2013, the Veteran indicated that he was not able to work 
because of his low back disability.  As it has been 
suggested that his disability impacts his ability to work, 
the Board finds that the issue of entitlement to a TDIU has 
been raised by the record.  The United States Court of 
Appeals for Veterans Claims (Court) has held that a TDIU 
claim is part of an increased disability rating claim when 
such claim is raised by the record.  See Rice v. Shinseki, 
22 Vet. App. 447 (2009).  The Court further held that when 
evidence of unemployability is submitted at the same time 
that the Veteran is appealing the rating assigned for a 
disability, the claim for TDIU will be considered part and 
parcel of the claim for benefits for the underlying 
disability.  Id.  As such, the issue has been included among 
those on appeal before the Board as captioned above.
In addition to the paper claims file, there is a Virtual VA 
paperless claims file associated with the Veteran's claim.  
A review of the documents in such file reveals that the 
Virtual VA paperless claims file includes VA outpatient 
treatment records dated from December 2011 to December 2012 
which the Board has considered herein.  The remaining 
documents in the Virtual VA paperless claims file are either 
duplicative of the evidence in the paper claims file or are 
irrelevant to the issue on appeal.

The issue of entitlement to a TDIU is addressed in the 
REMAND portion of the decision below and is REMANDED to the 
RO via the Appeals Management Center (AMC), in Washington, 
DC.


FINDINGS OF FACT

1.  Prior to December 6, 2011, the Veteran's herniated 
lumbar discs at L2-L3 and L4-S1 were manifested by pain in 
the lumbar spine with 90 degrees of flexion and 30 degrees 
of extension, lateral flexion, and lateral rotation; without 
incapacitating episodes for which a physician prescribed bed 
rest.

2.  From December 6, 2011, the Veteran's herniated lumbar 
discs at L2-L3 and L4-S1, at worst, has been manifested by 
with 30 degrees of flexion, 5 degrees of extension, and 10 
degrees of lateral flexion and lateral rotation; without 
incapacitating episodes for which a physician prescribed bed 
rest.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 10 
percent for service-connected herniated lumbar discs at L2-
L3 and L4-S1, prior to December 6, 2011, have not been met.  
38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 
C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, 
Diagnostic Codes 5242, 5243 (2013).

2.  The criteria for a disability rating in excess of 40 
percent for service-connected herniated lumbar discs at L2-
L3 and L4-S1, from December 6, 2011, have not been met.  38 
U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 
C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, 
Diagnostic Codes 5242, 5243 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), 38 
U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & 
Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2013), requires VA to assist a claimant at the 
time that he or she files a claim for benefits.  As part of 
this assistance, VA is required to notify claimants of what 
they must do to substantiate their claims.  38 U.S.C.A. § 
5103(a); 38 C.F.R. § 3.159(b)(1).

VA must inform the claimant of any information and evidence 
not of record (1) that is necessary to substantiate the 
claim; (2) that the claimant is to provide; and (3) that VA 
will attempt to obtain.  See Beverly v. Nicholson, 19 Vet. 
App. 394, 403 (2005).  In addition, the notice requirements 
of the VCAA apply to all five elements of a service 
connection claim, including: (1) Veteran status; (2) 
existence of a disability; (3) a connection between the 
Veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  
Specifically, the notice must include notice that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
Id. at 486.

By letters dated in February 2008, May 2009, November 2011, 
December 2011, February 2012, December 2012, and January 
2013 the Veteran was notified of the evidence not of record 
that was necessary to substantiate his claims.  He was told 
what information that he needed to provide, and what 
information and evidence that VA would attempt to obtain.  
He was also provided with the requisite notice with respect 
to the Dingess requirements.  Under these circumstances, the 
Board finds that the notification requirements of the VCAA 
have been satisfied.

For increased compensation claims, the VCAA requirement is 
generic notice, that is, the type of evidence needed to 
substantiate the claim, namely, evidence demonstrating a 
worsening or increase in severity of the disability and the 
effect that worsening has on employment, as well as general 
notice  regarding how disability ratings and effective dates 
are assigned.  See Vazquez-Flores v. Shinseki, 580 F. 3d 
1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 
(Fed. Cir. 2007).

In this case, the Veteran was provided pertinent information 
in the above-mentioned letters and other correspondence 
provided by the AOJ.  Specifically, VA informed the Veteran 
of the necessity of providing, on his own or by VA, medical 
or lay evidence demonstrating a worsening or increase in 
severity of his disability, and the effect that the 
worsening has on his employment and daily life.  The Veteran 
was informed that should an increase in disability be found, 
a disability rating would be determined by applying the 
relevant diagnostic codes; and examples of pertinent medical 
and lay evidence that he could submit relevant to 
establishing entitlement to increased compensation.  The 
Veteran was also provided notice of the applicable relevant 
diagnostic code provisions.

Next, the VCAA requires that VA make reasonable efforts to 
assist the claimant in obtaining evidence necessary to 
substantiate a claim.  The Veteran's relevant service, VA, 
and private medical treatment records have been obtained.  
There is no indication of any additional, relevant records 
that the RO failed to obtain.  The Veteran has been 
medically evaluated.  

As noted above, this case was most recently remanded in 
November 2012 in order to obtain outstanding VA treatment 
records, to afford the Veteran the opportunity to identify 
additional private medical treatment records,  to afford him 
an opportunity to identify alternative records, such as 
employment clinical records, earnings records, statements of 
other lay individuals, or other records that might 
substantiate his claim, and to afford him a VA examination 
so as to assess the severity of his low back disability.  
Thereafter, additional VA treatment records dated through 
December 2012 were associated with the Virtual VA claims 
file; in December 2012 the Veteran was notified of the 
opportunity to submit the above-stated additional records; 
and in February 2013, he was afforded a VA examination.  
Therefore, the Board finds that the AOJ has substantially 
complied with the November 2012 remand directives such that 
no further action is necessary in this regard.  See D'Aries, 
supra. 

In sum, the Board finds that the duty to assist and duty to 
notify provisions of the VCAA have been fulfilled and no 
further action is necessary under the mandates of the VCAA.  

Increased disability ratings

Disability ratings are intended to compensate impairment in 
earning capacity due to a service-connected disorder.  38 
U.S.C.A. § 1155.  Separate diagnostic codes identify the 
various disabilities.  Id.  It is necessary to rate the 
disability from the point of view of the Veteran working or 
seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable 
doubt regarding the extent of the disability in the 
Veteran's favor.  38 C.F.R. § 4.3.  If there is a question 
as to which disability rating to apply to the Veteran's 
disability, the higher rating will be assigned if the 
disability picture more nearly approximates the criteria for 
that rating.  Otherwise, the lower rating will be assigned.  
38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential 
to trace the medical history of the Veteran.  38 C.F.R. §§ 
4.1, 4.2, 4.41 (2013).  Consideration of the whole-recorded 
history is necessary so that a rating may accurately reflect 
the elements of disability present.  38 C.F.R. § 4.2 (2013); 
Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the 
Veteran's entire history is reviewed when assigning a 
disability rating, 38 C.F.R. § 4.1, where service connection 
has already been established and an increase in the 
disability rating is at issue, it is the present level of 
disability that is of primary concern.  Francisco v. Brown, 
7 Vet. App. 55 (1994).  Additionally, in determining the 
present level of a disability for any increased rating 
claim, the Board must consider the application of staged 
ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  
In other words, where the evidence contains factual findings 
that demonstrate distinct time periods in which the service-
connected disability exhibited diverse symptoms meeting the 
criteria for different ratings during the course of the 
appeal, the assignment of staged ratings would be necessary.

The assignment of a particular diagnostic code is 
"completely dependent on the facts of a particular case."  
See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One 
diagnostic code may be more appropriate than another based 
on such factors as an individual's relevant medical history, 
the current diagnosis and demonstrated symptomatology.  Any 
change in a diagnostic code by VA must be specifically 
explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Words such as "moderate," "moderately severe," and "severe" 
are not defined in the Rating Schedule.  Rather than 
applying a mechanical formula, the Board must 
evaluate all of the evidence to the end that its decisions 
are "equitable and just."  38 C.F.R. 4.6 (2013).  Use of 
terminology such as "severe" by VA examiners and others, 
although evidence to be considered by the Board, is not 
dispositive of an issue.  All evidence must be evaluated in 
arriving at a decision regarding an increased rating.  38 
C.F.R. §§ 4.2, 4.6 (2013).

It is possible for a Veteran to have separate and distinct 
manifestations from the same injury that would permit rating 
under several diagnostic codes; however, the critical 
element in permitting the assignment of several ratings 
under various diagnostic codes is that none of the 
symptomatology for any one of the conditions is duplicative 
or overlapping with the symptomatology of the other 
condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 
(1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment 
of separate ratings for the same manifestations of a 
disability under different diagnoses).

Disability of the musculoskeletal system is primarily the 
inability, due to damage or infection in the parts of the 
system, to perform the normal working movements of the body 
with normal excursion, strength, speed, coordination, and 
endurance.  It is essential that the examination on which 
ratings are based adequately portray the anatomical damage, 
and the functional loss, with respect to all these elements.  
The functional loss may be due to absence of part, or all, 
of the necessary bones, joints and muscles, or associated 
structures, or to deformity, adhesions, defective 
innervation, or other pathology, or it may be due to pain, 
supported by adequate pathology and evidenced by visible 
behavior of the claimant undertaking the motion.  Weakness 
is as important as limitation of motion, and a part which 
becomes painful on use must be regarded as seriously 
disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45 (2013).  VA must 
analyze the evidence of pain, weakened movement, excess 
fatigability, or incoordination and determine the level of 
associated  functional loss in light of 38 C.F.R. § 4.40, 
which requires the VA to regard as "seriously disabled" any 
part of the musculoskeletal system that becomes painful on 
use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

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 (2011); 
cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. 
Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 
1 Vet. App. 589, 592 (1991).  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 rating the 
severity of a joint disability, VA must determine the 
overall functional impairment due to these factors.  When 
rating spine disabilities, the Board must discuss any 
additional limitation of motion that a Veteran has due to 
pain, weakness, or fatigue.  See Cullen v. Shinseki, 24 Vet. 
App. 74, 85 (2011).

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) 
do not forbid consideration of a higher rating based on 
greater limitation of motion due to pain on use, including 
during flare-ups.  The guidance provided under DeLuca must 
be followed in adjudicating claims where a rating under the 
diagnostic code provisions governing limitation of motion 
should be considered.  However, the provisions of 38 C.F.R. 
§ 4.40 and 38 C.F.R. § 4.45, should only be considered in 
conjunction with the diagnostic code provisions predicated 
on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 
(1996).

The intent of the rating schedule is to recognize painful 
motion with joint or periarticular pathology as productive 
of disability.  It is the intention to recognize actually 
painful, unstable, or malaligned joints, due to healed 
injury, as entitled to at least the minimum compensable 
rating for the joint.  38 C.F.R. § 4.59 (2013).

The Board notes that in Buie v. Shinseki, 24 Vet. App. 242 
(2010), the Court held that even in increased rating claims, 
when VA receives a submission of new and material evidence 
within one year of a rating decision addressing the 
condition, 38 C.F.R. § 3.156(b) requires any subsequent 
decision to relate back to the original claim.  Id. at 251-
52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 
2011).  A review of the Veteran's claims file reveals that 
following the issuance of the September 2006 rating decision 
granting service connection for the Veteran's low back 
disability, there is no evidence received within one year 
which relates to any symptoms associated thereto.  Thus, 
with respect to the Veteran's claim seeking an increased 
disability rating, the December 2008 rating action is the 
proper rating decision on appeal.

The Veteran's herniated lumbar discs at L2-L3 and L4-S1 has 
been rated under 38 C.F.R. § 4.71a , Diagnostic Code 5243, 
which sets out the criteria for rating intervertebral disc 
syndrome.  Intervertebral disc syndrome is rated based upon 
incapacitating episodes.  Where incapacitating episodes 
manifest a total duration of at least one week but less than 
two weeks during the preceding 12 months, a 10 percent 
disability rating is warranted.  Where incapacitating 
episodes have a total duration of at least two weeks but 
less than four weeks during the preceding 12 months, a 20 
percent disability rating is warranted.  With incapacitating 
episodes having a total duration of at least four weeks but 
less than six weeks during the preceding 12 months, a 40 
percent disability rating is warranted.  A maximum 
disability rating of 60 percent is assigned with 
incapacitating episodes having a total duration of at least 
six weeks during the preceding 12 months.  It is noted that 
an "incapacitating episode" is a period of acute signs and 
symptoms due to intervertebral disc syndrome that requires 
bed rest prescribed by a physician and treatment by a 
physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243.

As the Veteran has been diagnosed with degenerative disc 
disease of the low back, his disability may also be rated as 
degenerative arthritis of the spine under 38 C.F.R. § 4.71a 
, Diagnostic Code 5242.  Under this diagnostic code 
provision, the  disability is to be rated under the General 
Rating Formula for Diseases and Injuries of the Spine.

Under the General Rating Formula for Diseases and Injuries 
of the Spine, a 10 percent disability rating is warranted 
for forward flexion of the thoracolumbar spine greater than 
60 degrees but not greater than 85 degrees, or combined 
range of motion of the thoracolumbar spine greater than 120 
degrees but not greater than 235 degrees, or muscle spasm, 
guarding, or localized tenderness not resulting in abnormal 
gait or abnormal spinal contour, or vertebral body fracture 
with loss of 50 percent or more of body height.

A 20 percent disability rating is warranted for forward 
flexion of the thoracolumbar spine greater than 30 degrees 
but not greater than 60 degrees, or when the combined range 
of motion of the thoracolumbar spine is not greater than 120 
degrees, or muscle spasm or guarding severe enough to result 
in an abnormal gait or abnormal spinal contour such as 
scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent disability rating is warranted for forward 
flexion of the thoracolumbar spine 30 degrees or less; or, 
favorable ankylosis of the entire thoracolumbar spine.

A 50 percent disability rating is warranted for unfavorable 
ankylosis of the entire thoracolumbar spine.

The maximum 100 percent disability rating is warranted for 
unfavorable ankylosis of the entire spine.  38 C.F.R. § 
4.71a, Diagnostic Codes 5235 to 5243 (2013).

Under the rating schedule, forward flexion to 90 degrees, 
and extension, lateral flexion, and rotation to 30 degrees, 
each, are considered normal range of motion of the 
thoracolumbar spine.  38 C.F.R. § 4.71a, General Rating 
Formula, Note 2, and Plate V (2013).

Low Back Disability Prior to December 6, 2011

The Veteran's claim for an increased disability rating was 
received in January 2008.  VA outpatient treatment records 
dated from January 2007 to November 2008 show that the 
Veteran was treated intermittently for symptoms associated 
with chronic low back pain for which he was treated with 
pain medication.

A physical therapy note dated in December 2007 shows that 
there was limitation of flexibility in the trunk muscles 
with increased pain and decreased function with prolonged 
posture and activities at work.  The Veteran was provided 
with a home program to build strength and flexibility in the 
core muscles.

A VA examination report dated in November 2008 shows that 
the Veteran reported continued back pain with progressive 
limitation with daily activity.  The Veteran reported 
experiencing decreased motion, weakness, spasms, and pain.  
He added that he would have moderate flare-ups with 
radiating pain every two to three weeks lasting 24 hours.  
The flare-ups would be alleviated with medication, 
stretching, relaxing, and laying down.  He estimated an 
additional 50 percent limitation of motion and functional 
impairment during a flare-up.  The Veteran reported that he 
had not had any incapacitating episodes of intervertebral 
disc syndrome requiring prescribed bed rest during the 
preceding 12 months.  Physical examination revealed normal 
range of motion (90 degrees of flexion and 30 degrees of 
extension, lateral flexion, and lateral rotation).  Combined 
range of motion of the thoracolumbar spine was 240 degrees.  
His gait was normal, and there was no alteration of spinal 
contour associated with spasms or guarding.  On repetitive 
motion, he was observed to lose five to 10 degrees of motion 
on forward flexion due to lack of endurance.  He reported 
that he had lost less than one week of work in the preceding 
year due to back pain.

A magnetic resonance imaging (MRI) study obtained in October 
2008 revealed 
mild degenerative changes of the lumbar spine with bulging 
discs.  There was no noted ankylosis of the thoracolumbar 
spine. 

VA outpatient treatment records dated from November 2008 to 
August 2010 show that the Veteran continued to be treated 
for ongoing reported chronic low back pain.

During his September 2010 hearing, the Veteran described 
experiencing pain, tenderness, and weakness in the low back.  
He indicated that his symptoms would be exacerbated by 
sitting still, standing, and walking.  He also described 
having back spasms.  He reported that he would treat his 
symptoms with two different medications.  He stated that he 
walked with a limp as a result of his back disability.  He 
added that he had not been prescribed bed rest for his low 
back disability since 2002.  He also indicated that he had 
missed approximately one to two weeks of work since 2008 as 
a result of his low back disability.

Having carefully considered the medical evidence of record, 
the Board finds that the Veteran's low back disability prior 
to December 6, 2011, does not meet the criteria for the 
assignment of the next higher 20 percent disability rating.  
The evidence of record, as detailed in pertinent part above, 
does not show a range of  motion finding that warrants a 
disability rating greater than 10 percent under the General 
Rating Formula for Diseases and Injuries of the Spine.  
Specifically, in November 2008, the Veteran had 90 degrees 
of flexion and a combined range of motion of 240 degrees.  
As a result, the criteria for a compensable disability 
rating [let alone the next higher 20 percent (flexion of 30 
to 60 degrees/combined range of motion of less than 120 
degrees)] are not met.  While the Veteran reported that he 
would experience occasional spasms, the medical evidence of 
record prior to December 6, 2011, did not demonstrate that 
the Veteran had muscle spasm or guarding that resulted in an 
abnormal gait or spinal contour such as scoliosis, reversed 
lordosis, or abnormal kyphosis.

There is no medical evidence suggesting that motion was 
further limited by functional factors, even when taking into 
account any additional functional impairment due to pain, 
fatigue, or lack of endurance.  See Mitchell, DeLuca; 38 
C.F.R. §§ 4.40, 4.45.  While the VA examiner in November 
2008 indicated that repetitive motion resulted in an 
observed five to 10 degrees loss of forward flexion due to 
lack of endurance, this would still amount to 80 degrees of 
forward flexion which does not meet the criteria for the 
assignment of the next higher disability rating.  While the 
Veteran clearly reports pain, pain is specifically 
contemplated in the rating assigned, 38 C.F.R. § 4.71a, and 
the medical evidence of record has not shown additional 
compensable functional impairment due to weakness and 
fatigue. 

Under Note (1) of the General Rating Formula, VA must 
consider whether combining ratings for orthopedic and 
neurological manifestations would result in a higher rating 
for the Veteran's service-connected lumbar spine disability.  
However, as noted in the introduction hereinabove, the 
Veteran has been awarded separate 20 percent disability 
ratings for neurological manifestations of each lower 
extremity, and such ratings are not currently on appeal 
before the Board.  As a result, there is no evidence 
warranting additional separate, compensable disability 
ratings under this provision.  

Further, although the rating criteria sets forth rating 
criteria for intervertebral disc syndrome on the basis of 
incapacitating episodes, here, while the disability has been 
shown to involve intervertebral disc syndrome, it has not 
been shown that it has required prescribed bed rest at any 
point pertinent to this appeal.  In this regard, the VA 
examiner in November 2008 indicated that the Veteran 
reported he had not had any incapacitating episodes of 
intervertebral disc syndrome requiring prescribed bed rest 
during the preceding 12 months.  Additionally, during his 
September 2010 hearing, he reported that he had not had an 
incapacitating episode since 2002.  While the Veteran has 
indicated that he has to rest on his back on occasion during 
a flare-up, there has been no indication in the record of 
physician-prescribed best rest, and this has been 
specifically denied on VA examination. 

The Board further finds that, since the date of the 
Veteran's claim for an increased disability rating until 
December 6, 2011, there was no additional distinct period of 
time during which the low back disability warranted a 
disability rating higher than that currently assigned.  
Accordingly, he is not entitled to receive an additional 
staged disability rating.  See Hart, supra. 
The Board has considered the statements of the Veteran as to 
the extent of his current symptoms.  He is certainly 
competent to report that his symptoms are worse.  Layno v. 
Brown, 6 Vet. App. 465, 470 (1994).  In evaluating a claim 
for an increased schedular rating, however, VA must consider 
the factors as enumerated in the rating criteria discussed 
above, which in part involves the examination of clinical 
data gathered by competent medical professionals.

The preponderance of the evidence is against the claim of a 
disability rating higher than 10 percent for herniated 
lumbar discs at L2-L3 and L4-S1 prior to December 6, 2011, 
therefore, the claim must be denied.   38 U.S.C.A. § 5107(b) 
(West 2002);  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Low Back Disability From December 6, 2011

A VA examination report dated December 6, 2011, shows that 
the Veteran's entire claims file was reviewed by the 
examiner in conjunction with conducting the examination of 
the Veteran.  The Veteran reported ongoing back pain for 
which he continued to take medication.  He described a 
constant pain rated as a seven on a scale of 10.  He added 
that medication would help reduce pain, but that he was 
never pain free.  He also reported lower back muscle spasms 
lasting up to six to eight hours at night and up to an hour 
in the daytime.  Physical examination revealed the ranges of 
motion of the thoracolumbar spine were measured as 30 
degrees of forward flexion, with pain at zero degrees; 10 
degrees of extension, with pain at zero degrees; 10 degrees 
of right and left lateral flexion, with pain at zero 
degrees; and 10 degrees of right and left lateral rotation, 
with pain at zero degrees. Following three repetitive 
movements, the ranges of motion of the thoracolumbar spine 
were the same.  There was weakened movement, excess 
fatigability, pain on movement, instability of station, 
disturbance of locomotion, and interference with sitting, 
standing and/or weight-bearing.  The Veteran had guarding or 
muscle spasm of the thoracolumbar spine severe enough to 
result in abnormal gait, abnormal spinal contour, such as 
scoliosis, reversed lordosis or abnormal kyphosis and 
guarding and/or muscle spasms.  X-ray impressions from March 
2011 revealed multilevel degenerative changes with most 
prominent finding of a left paracentral protrusion at the 
L4-5 level, causing significant mass effect on the 
traversing left-sided nerve roots as well as the exiting 
left L4 nerve root.   The diagnosis was degenerative disc 
disease, lumbar neuritis associated with the thoracolumbar 
spine,  and lower back pain.  The examiner noted that the 
Veteran reported to have at least six weeks of 
incapacitating episodes over the preceding 12 months due to 
intervertebral disc syndrome that resulted in prescribed bed 
rest and treatment by a physician, however, this was not 
verified by the medical or employment records.

A VA examination report dated in February 2013 shows that 
the Veteran reported that he had not undergone back surgery 
since his last VA examination.  He added that he had been 
provided with a back brace for assistance, which he used for 
three weeks, but that that his pain instead had increased in 
severity.  He continued to take pain medication for his 
symptoms.  He described a constant pain rated as a seven or 
eight on a scale of 10. The pain would increase to a 10 for 
a total of two to three hours in a 24 hour period.  Physical 
examination revealed ranges of motion for the thoracolumbar 
spine as 40 degrees of flexion; five degrees of extension; 
10 degrees of right and left lateral flexion; and 10 degrees 
of right and left lateral rotation.  The examiner added that 
the Veteran was able to perform repetitive-use testing with 
three repetitions with the same ranges of motion.  The 
examiner noted that the thoracolumbar spine presented with 
less movement than normal, weakened movement, and 
incoordination.  The examiner indicated that there was 
intervertebral disc syndrome, but without incapacitating 
episodes over the preceding  12 months.  The diagnosis was 
degenerative disc disease with myelopathy.  The VA examiner 
also clarified that according to the Veteran, he had never 
been prescribed bed rest and treatment by a physician while 
on bed rest in 2008, 2009, 2010, 2011, and 2012.  He claimed 
that he would be in bed on some weekends when he was off 
work to rest his back.

Having carefully considered the medical evidence of record, 
the Board finds that the Veteran's low back disability since 
December 6, 2011, does not meet the criteria for the 
assignment of the next higher 50 percent disability rating.  
The evidence of record, as detailed in pertinent part above, 
does not show that the Veteran's low back disability is 
manifested by unfavorable ankylosis of the entire 
thoracolumbar spine.  As a result, the criteria for a higher 
disability rating under the General Rating Formula for 
Diseases and Injuries of the Spine are not met.
There is no medical evidence suggesting that motion was 
further limited by functional factors, even when taking into 
account any additional functional impairment due to pain, 
fatigue, or lack of endurance.  See Mitchell, DeLuca; 38 
C.F.R. §§ 4.40, 4.45.  In this regard, the VA examiners in 
December 2011 and February 2013 each indicated that 
following three repetitive movements, the ranges of motion 
of the thoracolumbar spine were the same.  While the Veteran 
clearly reports pain, weakness, limitation of motion, 
spasms, and altered gait, such is specifically contemplated 
in the rating assigned, 38 C.F.R. § 4.71a, and the medical 
evidence of record has not shown additional compensable 
functional impairment rising to the level of ankylosis of 
the thoracolumbar spine. 

Additionally, as indicated above, VA must consider whether 
combining ratings for orthopedic and neurological 
manifestations would result in a higher rating for the 
Veteran's service-connected lumbar spine disability.  
However, the Veteran has been awarded separate 20 percent 
disability ratings for neurological manifestations of each 
lower extremity, and such ratings are not currently on 
appeal before the Board.  As a result, there is no evidence 
warranting additional separate, compensable disability 
ratings under this provision.  

Further, although the rating criteria sets forth rating 
criteria for intervertebral disc syndrome on the basis of 
incapacitating episodes, here, while the disability has been 
shown to involve intervertebral disc syndrome, it has not 
been shown that it has required prescribed bed rest at any 
point pertinent to this appeal.  In this regard, the VA 
examiner in November 2008 indicated that the Veteran 
reported he had not had any incapacitating episodes of 
intervertebral disc syndrome requiring prescribed bed rest 
during the preceding 12 months.  Additionally, during his 
September 2010 hearing, he reported that he had not had an 
incapacitating episode since 2002.  While the Veteran has 
indicated that he has to rest on his back on occasion during 
a flare-up, there has been no indication in the record of 
physician-prescribed best rest, and this has been 
specifically denied on VA examination. 

The Board further finds that, since December 6, 2011, there 
was no additional distinct period of time during which the 
low back disability warranted a disability rating higher 
than that currently assigned.  Accordingly, he is not 
entitled to receive an additional staged disability rating.  
See Hart, supra. 

The Board has considered the statements of the Veteran as to 
the extent of his current symptoms.  He is certainly 
competent to report that his symptoms are worse.  Layno, 6 
Vet. App. at 470.  In evaluating a claim for an increased 
schedular rating, however, VA must consider the factors as 
enumerated in the rating criteria discussed above, which in 
part involves the examination of clinical data gathered by 
competent medical professionals.

The preponderance of the evidence is against the claim of a 
disability rating higher than 40 percent for herniated 
lumbar discs at L2-L3 and L4-S1 from December 6, 2011, 
therefore, the claim must be denied.   38 U.S.C.A. § 5107(b) 
(West 2002);  Gilbert, 1 Vet. App. at 53-56.

Extra-schedular Consideration

Finally, the Board finds that the Veteran's low back 
disability does not warrant referral for extra-schedular 
consideration.  In exceptional cases where schedular ratings 
are found to be inadequate, consideration of an extra-
schedular disability rating is made.  38 C.F.R. § 
3.321(b)(1).  There is a three-step analysis for determining 
whether an extra-schedular disability rating is appropriate.  
Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must 
be a comparison between the level of severity and 
symptomatology of the Veteran's service-connected disability 
and the established criteria found in the rating schedule to 
determine whether the Veteran's disability picture is 
adequately contemplated by the rating schedule.  Id.  If 
not, the second step is to determine whether the claimant's 
exceptional disability picture exhibits other related 
factors identified in the regulations as "governing norms."  
Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms 
include marked interference with employment and frequent 
periods of hospitalization).  If the factors of step two are 
found to exist, the third step is to refer the case to the 
Under Secretary for Benefits or the Director of the 
Compensation and Pension Service for a determination 
whether, to accord justice, the claimant's disability 
picture requires the assignment of an extra-schedular 
rating.  Id.
The Board finds that the evidence does not warrant referral 
of the Veteran's claim for extra-schedular consideration.  
The level of severity of the Veteran's low back disability 
is adequately contemplated by the applicable diagnostic 
criteria.  The criteria provide for a higher rating, but as 
has been thoroughly discussed above, the rating assigned 
herein is appropriate.  In view of the adequacy of the 
disability rating assigned under the applicable diagnostic 
criteria, consideration of the second step under Thun is not 
for application in this case.  Accordingly, the claim will 
not be referred for extra-schedular consideration. 


ORDER

A disability rating in excess of 10 percent for herniated 
lumbar discs at L2-L3 and L4-S1 prior to December 6, 2011, 
is denied.

A disability rating in excess of 40 percent for herniated 
lumbar discs at L2-L3 and L4-S1 from December 6, 2011, is 
denied.


REMAND

Unfortunately, a remand is required in this case as to the 
issue of entitlement to a TDIU.  Although the Board 
sincerely regrets the additional delay, it is necessary to 
ensure that there is a complete record upon which to decide 
the Veteran's claim so that he is afforded every possible 
consideration.  VA has a duty to make reasonable efforts to 
assist the claimant in obtaining evidence necessary to 
substantiate the claim for the benefit sought, unless no 
reasonable possibility exists that such assistance would aid 
in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 
2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2013).

The Veteran contends that his service-connected low back 
disability precludes him 
from engaging in substantially gainful employment consistent 
with his education and his occupational experience.

A Veteran will be entitled to a TDIU upon establishing an 
inability to secure or follow a substantially gainful 
occupation due solely to impairment resulting from service-
connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. 
§§ 3.340, 3.341, 4.15, 4.16.  Consideration may be given to 
the level of education, any special training, and previous 
work experience in making this determination, but not to age 
or impairment from disabilities that are not service 
connected (i.e., unrelated to military service).  See 38 
C.F.R. §§ 3.341, 4.15, 4.16, 4.19.

To qualify for a total disability rating for compensation 
purposes, the evidence must show (1) a single disability 
rated as 100 percent disabling; or (2) that the Veteran is 
unable to secure or follow a substantially gainful 
occupation as a result of service-connected disabilities - 
provided there is one disability ratable at 60 percent or 
more, or, if more than one disability, at least one 
disability ratable at 40 percent or more and a combined 
disability rating of 70 percent. 38 C.F.R. § 4.16(a).

While the regulations do not provide a definition of 
"substantially gainful employment," VA Adjudication 
Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), 
defines the term as "that which is ordinarily followed by 
the nondisabled to earn their livelihood with earnings 
common to the particular occupation in the community where 
the Veteran resides."  Also, in Faust v. West, 13 Vet. App. 
342   (2000), the Court defined "substantially gainful 
employment" as an occupation that provides an annual income 
that exceeds the poverty threshold for one person, 
irrespective of the number of hours or days that the Veteran 
actually works and without regard to the Veteran's earned 
annual income . . ." 

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the 
Court also discussed the meaning of "substantially gainful 
employment."  In this context, the Court noted the following 
standard announced by the United States Court of Appeals for 
the Federal Circuit  (Federal Circuit) in Timmerman v. 
Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): 

It is clear that the claimant need not be a total 
'basket case' before the Courts find that there is an 
inability to engage in substantial gainful activity.  
The question must be looked at in a practical manner, 
and mere theoretical ability to engage in substantial 
gainful employment is not a sufficient basis to deny 
benefits.  The test is whether a particular job is 
realistically within the physical and mental 
capabilities of the claimant.

Marginal employment, for example, as a self-employed worker 
or at odd jobs or while employed at less than half of the 
usual remuneration, shall not be considered "substantially 
gainful employment."  38 C.F.R. § 4.16(a).  See, too, Moore 
(Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  That 
is, a Veteran may be considered as unemployable upon 
termination of employment that was provided on account of 
disability or in which special consideration was given on 
account of the same.  See 38 C.F.R. § 4.18. 

To receive a TDIU, the Veteran's service-connected 
disabilities, alone, must be sufficiently severe to cause 
unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 
(1993).  In this case, the Veteran currently meets the 
minimum percentage requirements for a TDIU set forth in 38 
C.F.R. § 4.16(a).  However, it remains unclear whether the 
Veteran is prevented from engaging in substantially gainful 
employment as a result of his service-connected 
disabilities.  In this regard, on VA examination in February 
2013, the VA examiner indicated that based on the diagnoses, 
the Veteran could not perform heavy labor work, but could 
perform light labor and sedentary duty.  The examiner added 
that the Veteran could not perform jobs that required 
bending and heavy lifting.  The examiner then stated that 
the Veteran could not perform jobs that required sitting, 
standing, or walking more than 15 minutes at a time due to 
back pains.  As the examiner in one statement suggests that 
the Veteran can undertake light labor and sedentary work, 
and in another statement suggests that the Veteran cannot 
work in a job requiring sitting, standing, or walking more 
than 15 minutes at a time, it remains unclear to the Board 
whether the Veteran can actually engage in substantially 
gainful employment.  As such, on remand, the Veteran should 
be afforded a VA examination in order to obtain an opinion 
as to whether the service-connected disabilities have 
impacted his ability to work.  See Friscia v. Brown, 7 Vet. 
App. 294, 297 (1994).

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC shall schedule the Veteran 
for a VA examination to determine whether 
his service-connected disabilities, either 
alone or in combination, prevent him from 
securing or following employment for which 
his education and occupational experience 
would otherwise qualify him.

The claims file, including this remand, 
must be sent to the examiner for review; 
consideration of such should be reflected 
in the completed examination report.

The examiner is requested to determine 
whether the Veteran is currently working.

If not, the examiner shall opine as to 
whether it is at least as likely as not 
that the Veteran's service-connected 
disabilities, either alone or in 
combination, preclude him from securing or 
following substantially gainful employment 
for which his education and occupational 
experience would otherwise qualify him. 

The examiner must provide reasons for the 
opinion.  If the examiner is unable to 
provide an opinion without resort to 
speculation, he or she should explain why 
this is so and what, if any, additional 
evidence would be necessary before an 
opinion could be rendered.

The examiner is advised that the Veteran 
is competent to report his symptoms and 
history and such reports must be 
specifically acknowledged and considered 
in formulating any opinions.  If the 
examiner rejects the Veteran's reports, 
the examiner must provide a reason for 
doing so.

2.  The RO/AMC will then review the 
Veteran's claims file and ensure that the 
foregoing development actions have been 
conducted and completed in full, and that 
no other notification or development 
action, in addition to those directed 
above, is required.  If further action is 
required, it should be undertaken prior to 
further claim adjudication.

3.  The RO/AMC will then readjudicate the 
Veteran's claim.  If the benefit sought on 
appeal remains denied, the Veteran and his 
representative should be provided with a 
Supplemental Statement of the Case.  An 
appropriate period of time should be 
allowed for response.

Thereafter, if appropriate, the case is to be returned to 
the Board, following applicable appellate procedure.  The 
Veteran need take no action until he is so informed.  He has 
the right to submit additional evidence and argument on the 
matter or matters the Board has remanded.  Kutscherousky v. 
West, 12 Vet. App. 369 (1999).  The purposes of this remand 
are to obtain additional information and comply with all due 
process considerations.  No inference should be drawn 
regarding the final disposition of this claim as a result of 
this action.

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs