Citation Nr: 1329975 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 01-07 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of compression fracture at T11, T12. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1980 to October 1984. These matters are before the Board of Veterans' Appeals (Board) on July 2009 remand from the United States Court of Appeals for Veterans Claims (Court) for compliance with instructions in a July 2009 dated Joint Motion for Partial Remand by the parties. The case was originally before the Board on appeal from an August 2000 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for compression fracture of T11 and T12, rated 20 percent, and denied TDIU. In December 2005, the Board denied a rating in excess of 20 percent for compression fracture of T11 and T12 and TDIU. The Veteran appealed that decision to the Court. In March 2006, the Court endorsed an earlier Joint Motion for Remand by the parties, vacated the Board's December 2005 decision, and remanded these matters for action consistent with the Joint Motion. In July 2006, the Board again denied the Veteran's claims. He appealed that decision to the Court. In April 2008, the Court endorsed another Joint Motion by the parties to vacate the Board's July 2006 decision, and remanded these matters for action consistent with the Joint Motion. Following the Court's April 2008 remand, the case was reassigned to the undersigned (because the December 2005 and July 2006 Board decisions were decided by a Veterans Law Judge who is no longer with the Board). In March 2010, the Board remanded these matters for action consistent with the Joint Motion. In July 2012, the Board again remanded these matters so that the RO could fulfill the Veteran's attorney's Freedom of Information Act (FOIA) request. FINDINGS OF FACT 1. Throughout the appeal period the Veteran's residuals of compression fracture of T11 and T12 have been manifested by no more than moderate limitation of thoracic spine motion; ankylosis of the thoracic spine and, from September 26, 2003, limitation of forward flexion of the thoracolumbar spine to 30 degrees or less are not shown. 2. The Veteran's only service-connected disability, residuals of compression fracture at T11 and T12, rated 20 percent, is not shown to alone be of such severity as to preclude his participation in any substantially gainful employment. CONCLUSIONS OF LAW 1. A rating in excess of 20 percent for residuals of compression fracture at T11 and T12 is not warranted for any period of time during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5285, 5291 (in effect prior to September 26, 2003), Code 5235 (2012). 2. The schedular criteria for TDIU are not met, and a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection, and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). An August 2001 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating, and a July 2005 supplemental SOC (SSOC) readjudicated the matter after additional development was completed/the Veteran had opportunity to respond. See 38 U.S.C.A. § 7105. See Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim through letters sent in March 2004 and August 2004. He has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. While adequate notice was arguably not provided prior to the initial adjudication of the instant claim, the case was subsequently readjudicated most recently in an April 2013 SSOC, curing any notice timing defects. Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Veteran has received all critical notice, and has had ample opportunity to respond/supplement the record. He has not alleged that he is prejudiced by a notice defect. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's pertinent treatment records have been secured. He has been provided VA examinations including in April 2000, September 2004, October 2004, July 2010 (with addenda in November 2010 and June 2011), and March 2013. A review of the examination reports shows that they contain sufficient clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. The Board finds there has been compliance with the instructions of the Board's prior remands regarding the matters at hand; in particular, the Board notes that the processing of the most recent remands has resulted in completion of actions associated with the FOIA request as well as the addition of updated VA treatment records and adequate VA examination reports in the evidence of record. The Board notes that a January 2013 letter from the RO to the Veteran explained that although his attorney has referred to having submitted a detailed log of the Veteran's pain, medication, and rest due to service-connected disability, no such log is found in the claims-file. The January 2013 letter to the Veteran explained the situation and informed the Veteran that he may submit or re-submit the described evidence for consideration. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Increased Rating for Residuals of Compression Fracture in Thoracic Spine The Veteran claims that his disability due to the service-connected residuals of compression fracture at T11, T12 is more severe than reflected by the 20 percent rating currently assigned. The Board notes that service connection is in effect specifically for residuals of compression fracture in the thoracic spinal region; broader disability of the spine that is not necessarily part of the service-connected pathology is shown (by competent medical evidence) to be distinct from manifestations of the service-connected compression fracture. The current 20 percent disability rating is in effect from the effective date of the grant of service connection in May 1998; the period for consideration in this appeal spans back to that original effective date. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.) The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The criteria for evaluating diseases or injuries of the spine were amended effective September 26, 2003. From their effective date, the Veteran is entitled to a rating under the revised criteria, if such are more favorable. Prior to September 2003, residuals of a vertebral fracture were rated under Code 5285, which provided that where the disability was without cord involvement, but with abnormal mobility requiring a neck brace (jury mast), a 60 percent evaluation was to be assigned. In other cases, the residuals were to be rated according to definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of the vertebral body. 38 C.F.R. § 4.71a, Code 5285. Prior to September 2003, Code 5291 (for limitation of motion of the dorsal/thoracic spine) provided for a 0 percent rating when limitation of motion was slight and a (maximum) 10 percent rating when limitation of motion was moderate or severe. 38 C.F.R. § 4.71a, Code 5291. A higher rating required ankylosis of the thoracic spine (20 percent for favorable; 30 percent for unfavorable). 38 C.F.R. § 4.71a, Code 5288. From September 26, 2003, residuals of a vertebral fracture are rated under Code 5235 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). The General Formula provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Code 5235, General Rating Formula for Diseases and Injuries of the Spine (effective September 26, 2003). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. See Notes following General Formula (effective September 26, 2003). 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 Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (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). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has carefully reviewed all the evidence of record and finds that the preponderance of the evidence is against the grant of a rating in excess of 20 percent for residuals of compression fracture at T11, T12 for any period of time during the appeal period. The Veteran's limitation of thoracic spine motion has never been shown to be more than moderate in degree. For example, when private physician Dr. BVD examined the Veteran in March 1998, the Veteran had 70 degrees of flexion and approximately 10 degrees of extension with complaints of pain on extension. Dr. BVD recommended that the Veteran have flexion/extension lateral views of the lumbar spine, which was done in April 1998. In June 1998, Dr. BVD reviewed the x-rays and stated, "In brief, the study is normal." He concluded that, based upon the findings, it would be his estimate that the Veteran had "a minimally disabling condition." He felt the Veteran had loss of about 25 percent of his work capacity. A July 1998 decision from the "California Unemployment Insurance Appeals Board" noted that the Veteran had been examined in May 1998 by Drs. TD and BVD (whose findings are reported above). Dr. TD stated the Veteran's gait and heel-and-toe walking were normal. Flexion of the spine was to 90 degrees, extension to 10 degrees, and lateral flexion to 10 degrees, bilaterally. There was no significant spasm or tenderness throughout the lumbar spine. He opined that the Veteran did not show any evidence of new changes occurring in his lumbar spine since 1994 and was able to perform his usual and customary work as of May 1, 1998. In April 2000, the VA examiner stated the Veteran had 90 degrees of flexion and 30 degrees of extension, which was painful. He noted the Veteran flexed and extended slowly. An x-ray of the spine showed an unremarkable thoracic spine and no compression deformities in the lower spine to correspond with history of compression fractures. The Veteran underwent physical therapy in May 2000 through June 2000. The physical therapist noted the Veteran was doing "pool therapy," which was assisting in "increasing flexibility and strength while decreasing back pain." He was exercising for 40 minutes and increased that time to 50 minutes in June 2000. A September 2000 VA outpatient treatment report shows that examination of the spine revealed minimal tenderness to palpation over spine and right paraspinous spasm. The Veteran was able to walk with mild difficulty and able to rise from the chair without assistance and without using an arm. These same findings were reported in February 2001. An April 2002 VA outpatient treatment report notes that examination of the lumbar spine was within normal limits except "approx[imately] 80 - 90% all planes." A September 2004 VA examination report shows the Veteran was able to forward flex from 0 to 90 degrees "repetitively," laterally bend from 0 to 20 degrees, bilaterally, "repetitively," and extend from 0 to 20 degrees and rotate from 0 to 30 degrees, bilaterally. The examiner noted the Veteran complained of discomfort with lateral bending and forward flexing. An October 2004 VA examination report shows flexion was to 40 degrees and extension was to 10 degrees, both with pain. Bilateral lateral flexion and rotation were to 20 degrees without pain. A July 2010 VA examination report shows that the Veteran described having been unemployed since 1994 due to chronic back pain. The Veteran described constant pain radiating into either or both legs with variable patterns. He reported being able to walk up to five blocks before needing to rest his back on a good day, but only one to two blocks on a bad day. The Veteran's ability to stand was limited to 10 to 15 minutes. The Veteran used a cane for ambulation. The Veteran reported that he had not used a back brace and he did not describe any incapacitating episodes of back pain in the last 12 months. The report shows that the Veteran emphasized that the pain in his lumbar area was more severe and more closely related to the radicular symptoms in his lower extremities than was the mid-thoracic pain. The July 2010 VA examiner remarked that X-rays taken in April 2000 show mild height loss involving the anterior aspect of T12, but x-rays done since that time (specifically citing an April 2004 study) and some MRI studies prior to that time did not demonstrate any evidence of thoracic compression fractures. July 2010 VA examination revealed a wide-based gait which was non-antalgic and he used a cane; his thoracolumbar spine had a normal curve without deformities; there was mild tenderness to palpation over the midline over the spinous processes of the lower thoracic vertebrae; no paraspinous muscle spasm was present; and there was tenderness to palpation over the lower lumbar area and sacrum with no muscle spasm. Range of motion testing revealed forward flexion to 75 degrees with slight pain at 75 degrees; extension to 20 degrees without pain; right and left lateral flexion to 20 degrees without pain; and right and left lateral rotation to 20 degrees without pain. The report states that there was no additional loss of range of motion after repetitive use due to pain, fatigue, weakness, lack of endurance, or incoordination. There was a mild decrease in light tough sensation over the lateral aspect of the left lower leg as compared to the right. Motor function was normal and bilaterally symmetrical. Deep tendon reflex testing revealed an absent patellar reflex on the right with normal (2+) patellar reflex on the left and normal (2+) Achilles' reflexes bilaterally. The examiner diagnosed (1) a history of eleventh thoracic and twelfth thoracic compression fractures which were no longer apparent on recent x-rays, and (2) lumbosacral strain with radicular symptoms. The July 2010 VA examination report presents the examiner's comment that the Veteran's radicular symptoms were inconsistent in their location, but the absence of the right patellar reflex and decreased sensation in the left lower leg suggested a possible nerve root compression. The examiner explained that this would be more closely related to the lumbosacral symptoms than to those of the thoracic spine. The examiner commented that there was no MRI evidence supporting nerve compression at that time. The examiner concluded that the Veteran's pain symptoms and activity limitation were not fully supported by the physical findings, and that "[i]t is less likely as not (less than 50/50 probability) [that the pain symptoms and activity limitation are] caused by or a result of his T11-12 compression fractures." The examiner also found no reason why the Veteran would not be able to find and hold employment, particularly if vigorous activity were not required. A November 2010 addendum to the July 2010 VA examination report indicates that, following additional review of a December 1998 MRI report showing "normal" findings of the cervical and lumbar spines, the examiner's conclusions did not change. The examiner also explained that although September 2004 x-rays showed no compression deformity, the examiner's latest (July 2010) x-rays did confirm a T11 compression fracture but did not show a compression fracture of T12; the examiner explained that "the compression fracture is very mild, less than 10 percent, and would not be expected to give rise to the symptoms which the veteran identified as problems on my examination of July 22, 2010." The VA examiner repeats that none of the information in any way alters the opinion presented in the July 2010 report. A June 2011 addendum to the July 2010 VA examination report further clarifies that there was no evidence of ankylosis in the examination or on the available thoracic and lumbar spine x-rays. The examiner also explained that the Veteran's account of his symptoms did not include any description of flare-ups; the Veteran's account of symptoms described only a moderate day-to-day variation in the severity of the back pain related to his level of activity. Additionally, the examiner explained that the Veteran's absent right patellar reflex corresponds to L4 vertebrae pathology, and his subjective mild decrease in lower leg sensation (identified as right sided in the addendum but indicated as left sided in the original report) could correlate with the L4 and L5 vertebral region. The examiner described that the mild limitation of range of motion due to pain would limit the Veteran's ability to perform occupations requiring significant bending and lifting; his inability to walk more than one to two blocks, stand for more than 10-15 minutes, and sit for more than 30-40 minutes before needing to stand and walk due to leg numbness would also limit his job opportunities. The examiner found that the Veteran would be a candidate for sedentary work where he would be allowed to get up and walk around at his discretion, and these requirements would fit a variety of clerical and administrative occupations. The VA examiner reiterated that the Veteran's current symptoms of chronic back pain were not linked to the Veteran's service-connected thoracic spine compression fracture. The examiner explained that diagnostic study of the lumbar spine, not the service-connected thoracic region, was indicated in connection with the Veteran's symptoms and clinical findings. A March 2013 VA examination report shows that the Veteran complained of progressive pain and stiffness. He described weekly severe flare-ups of spine symptoms lasting one to two days at a time; the flare-ups were described as precipitated by prolonged walking/standing/sitting, bending, twisting, or lifting/carrying. The flare-ups were partially alleviated by rest and activity modification. The report indicates that the extent of additional limitation of motion or other functional impairment during flare-ups was characterized by the difficulty with the aforementioned activities. The Veteran's reported symptoms included numbness and paresthesias of the bilateral thighs, fatigue, decreased motion, stiffness, weakness, spasm, and moderate dull pain constantly. The Veteran walked with a cane and was limited to walking a distance of 4 blocks. Physical examination revealed normal posture, head position, and symmetry in appearance. The Veteran had an antalgic gait with poor propulsion. There were no abnormalities of spinal curvatures. There were bilateral spasms, pain with motion, and tenderness of the thoracolumbar spine. Active thoracolumbar spine range of motion testing revealed flexion to 60 degrees, extension to 10 degrees, left lateral flexion to 20 degrees, left lateral rotation to 20 degrees, right lateral flexion to 20 degrees, and right lateral rotation to 20 degrees. The examiner noted objective evidence of pain on active range of motion and of pain following repetitive motion; however, the examiner specifically noted that there was no additional limitation of range of motion (relative to the ranges reported above) after three repetitions. Testing revealed normal bilateral plantar reflexes and bilateral hypoactive knee and ankle jerk reflexes. Detailed motor examination was normal in all respects with normal muscle tone and no atrophy. Radiographic study of the thoracic spine conducted in connection with this VA examination was interpreted as showing mild degenerative disc disease of the thoracic spine and degenerative changes of the thoracic spine characterized by endplate osteophytes. The report indicates there was no acute osseous abnormality. The report shows stable wedging of the T4 and T11 vertebral bodies. The report indicates that a compression deformity of the T4 vertebral body was better appreciated on the prior (July 2010) radiographic study. Radiographic study of the lumbosacral spine was interpreted as showing no appreciable degenerative changes and no acute osseous abnormalities; the study revealed sacrilization of the L5 vertebral body and stable mild inter wedging of the T11 vertebral body. The March 2013 VA examiner noted that the Veteran's service-connected vertebral fracture featured less than a 10 percent loss of height involving thoracic vertebrae 11/12. The Veteran reported that he had been unemployed due to the spine condition for 10 to 20 years. The diagnosis was healed thoracic compression fractures with residual mild malunion and pain. The examiner observed that the Veteran's resulting occupational limitations included a need for assignment of different duties, increased tardiness, increased absenteeism, decreased mobility, problems with lifting and carrying, and pain. The problem was also associated with limitation of ability to engage in sports, exercise, chores, shopping, and travel. The examiner specifically noted that there had been no incapacitating episodes secondary to intervertebral disc syndrome. Elsewhere in the report the examiner expressly stated that there was no thoracic or lumbar ankylosis and there were no objective motor or sensory findings related to thoracic spine disability. VA treatment records document that the Veteran developed complaints of a burning sensation in the lower extremities in 2006, and otherwise present documentation of the Veteran's consultations, medical treatment, and physical therapy for back complaints. The information in the VA treatment records is otherwise substantially consistent with the much more detailed information and findings presented in the VA examination reports and evidence discussed above. The 20 percent rating for the Veteran's service connected residuals of thoracic compression fracture was assigned under the criteria of the pre-September 26, 2003 Codes 5285 and 5291. It is noteworthy that the 20 percent rating assigned is the maximum provided under Codes 5285 and 5291, i.e., a (maximum under Code 5291) 10 percent rating is warranted where there is severe limitation of dorsal spine motion, and an additional 10 percent was assigned for deformity of a vertebral body. A higher than 10 percent rating based on limitation of thoracic spine motion under the pre-September 26, 2003 criteria could only be assigned if there was ankylosis of the dorsal/thoracic spine (in which case a 20 percent rating could be assigned for favorable ankylosis, and a 30 percent rating for unfavorable ankylosis; see Code 5288). As dorsal (or thoracic) ankylosis has never been diagnosed, a higher rating under Code 5288 is not warranted. Furthermore, a higher rating under Code 5285 is also not warranted, as there is no evidence of cord involvement. See 38 C.F.R. § 4.71a, Code 5285. Considering the rating for the Veteran's residuals of thoracic spine compression fracture under the revised criteria that came into effect September 26, 2003, because the disability is already rated 20 percent, the focus is on those criteria that would afford a rating in excess of 20 percent. The General Formula (outlined above) provides for the next higher, 40 percent, rating when forward flexion of the thoracolumbar spine is limited to 30 degrees or less or where there is favorable ankylosis of the entire thoracolumbar spine. The greatest limitation of thoracolumbar motion shown by the record was noted on October 2004 VA examination report, when flexion was limited to 40 degrees by pain (at the lumbosacral level). The Veteran has been provided multiple VA examinations since that time, and none of the evidence of record shows thoracolumbar spinal motion functionally limited to 30 degrees or less at any time (including as recently as the latest March 2013 VA examination report), nor does any of the evidence show ankylosis. It is noteworthy that when Code 5285 was replaced by Code 5235, the provision for an additional 10 percent rating based on demonstrable deformity of a vertebral body was eliminated. The Board observes that no medical professional has indicated that the residuals of thoracic compression fractures include intervertebral disc syndrome. However, as the Veteran has received a diagnosis of "mild" disc disease in the thoracic spine, including as noted in the March 2013 VA examination report, the Board notes that no higher ratings can be assigned for mild disc disease in this case even were the Board to assume such pathology is linked to the service-connected disability. Diagnostic Code 5293, which existed prior to September 2002, assigned a 60 percent rating for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the site of the diseased disc and little intermittent relief. A 40 percent rating was assigned for severe intervertebral disc syndrome, with recurrent attacks, with intermittent relief; a 20 percent rating when moderate with recurrent attacks; a 10 percent rating when mild; and a noncompensable rating for postoperative, cured. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (September 23, 2002). The evidence of record does not indicate disc disease that is greater than mild in severity at any time, so no rating in excess of the currently assigned 20 percent rating for the thoracic spine disability is for consideration under the former criteria. Under the newer criteria, intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides ratings on the basis of the occurrence of pertinent incapacitating episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The evidence in this case presents no indication of any incapacitating episodes (as defined) associated with disc disease, therefore no higher rating would be for consideration under the new criteria even were the Board to assume that any current disc disease is part of the service-connected thoracic spine pathology. Indeed, the July 2010 and March 2013 VA examination reports both document that the Veteran's description of symptoms includes no indication of any incapacitating episodes. An increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, 8 Vet. App. 202 (discussing 38 C.F.R. §§ 4.40, 4.45). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) citing 38 C.F.R. § 4.40. Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court has held that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board finds that there is a discrepancy between the objective functional loss and that which the Veteran reports he has for the service-connected compression fracture of T11 and T12. In VA treatment records, dated from 1999 to 2001, examiners routinely made findings that the Veteran's reported symptoms were out of proportion with the objective findings of both the examination and radiologic studies. This is consistent with the finding reported by Dr. BVD in the March 1998 letter. After noting radiological findings, he stated that, "None of these findings in particular explains the patient's ongoing symptoms." The Veteran's VA primary care provider noted, including in June 1999 treatment reports, that the Veteran engaged in "manipulation" and presented "subjective complaints disproportionate to exam and radiologic studies." A different VA primary care provider commented in an April 2001 VA treatment report that the Veteran presented complaints of "pain out of proportion to exam or imaging studies." Additionally, in the October 2004 VA examination report, the examiner stated, "I should also stress that I would be in total agreement with the physical therapy notes of September 19, 2000, that the Veteran's complaints are disproportionate to his examination." This finding by the October 2004 examiner lessens the probative value of the clinical findings made by that examiner based upon the reports of pain by the Veteran. The examiner stated that the current examination of the Veteran's thoracolumbar spine "fails to reveal any evidence of any objective abnormality." He noted the Veteran presented with "claims of total disability" but that "there [was] not objective evidence of any underlying orthopedic pathology" to support the Veteran's assertion based upon his examination of the Veteran. However, he noted that based upon the Veteran's report of pain, it would appear that the Veteran had "significant functional impairment." He added he found it difficult to attribute the current symptoms and associated disability with functional impairment to the service-connected compression fracture of T11 and T12. It must be noted that the examiner who examined the Veteran in October 2004 had thoroughly reviewed the claims file, as evidenced by the length of the examination report and the detailed report of past medical findings. Additionally, this was not the first time this examiner had reviewed the claims file (he had reviewed the file in connection with the Veteran's claim for service connection for the thoracic spine disability and provided a positive medical nexus). As a result, the Board has accorded high probative value to the findings by this examiner. There is strong indication that the Veteran exaggerates his symptoms, and there is no objective evidence of the degree of limitation of function the Veteran alleges. In fact, based upon the detailed findings of the VA examination reports, it appears the Veteran's thoracic spine compression fracture pathology is no more than mild or slight in severity. Hence, the application of 38 C.F.R. §§ 4.40, 4.45, and 4.59 in assigning a higher rating would not be appropriate. A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston, 10 Vet. App. at 85 citing 38 C.F.R. § 4.40. Here, medical professionals have determined that the finding of functional loss due to pain is not supported by adequate pathology. Thus, the Board does not find that an increased rating based upon functional loss is warranted. The Board notes that this appeal is from the initial rating assigned with the grant of service connection, and that in such cases, it must be considered whether staged ratings may be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). As the greatest degree of impairment objectively shown (and noted above) during the appeal period is encompassed by schedular criteria for the 20 percent rating currently assigned, the Board must conclude that staged ratings are not warranted. In the March 2006 joint motion, the parties noted that, "[T]he April 2000 and October 2004 examinations relied upon by the Board in its analysis failed to address at what point pain begins or whether Appellant experienced any additional functional loss during flare-ups." It was noted that such examinations could be considered inadequate for rating purposes. Subsequently, new VA examination reports dated in July 2010 (with November 2010 and June 2011 addenda) and March 2013 have been prepared and added to the record. The July 2010 report specifies at what point pain begins on range of motion testing and (in the June 2011 addenda) explains that the Veteran's account of symptoms during the examination "did not describe flare-ups," but rather only "moderate day-to-day variation in the severity of the back pain related to his level of activity." The March 2013 VA examination report presents range of motion testing results and describes that there was pain on active range of motion but with no additional limitation of motion following repetitive testing. The March 2013 VA examination report describes weekly "severe" flare-ups of one or two days' duration and discusses associated additional difficulty with activities. Although some of the VA examination reports of record may arguably fail to fully specify to a point in the active range of motion where pain begins, the Board finds that the evidence adequately presents the necessary information regarding any functional loss associated with the disability on appeal. After the March 2006 joint motion, the Court issued a holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), clarifying that pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court has held that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board further finds that to remand this case for more discussion of the Veteran's account of subjective pain and flare-up symptoms would serve no useful purpose. First of all, a current examination could not establish a prior degree of functional loss resulting from pain, or on flare-up. Furthermore, multiple contemporaneous (to the period of time under consideration) examiners have questioned the veracity of the Veteran's report of symptoms associated with pain. They have made specific findings that the Veteran's reports of pain were not proportional to the objective findings, but were exaggerated. It is noteworthy that the Joint Motion endorsed by the Court remanding the case to the Board did not take exception with the schedular rating assigned. For the reasons stated above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected residuals of compression fracture of T11 and T12 warrant a schedular rating in excess of 20 percent for any period of time under consideration. Consequently, the benefit-of-the- doubt rule is not for application. Gilbert, 1 Vet. App. at 55. The Board also has considered whether this claim warrants referral for consideration of an extraschedular rating. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Comparing the manifestations of the Veteran's thoracic spine disability and the associated impairment shown to the rating schedule, the Board finds that the degree of disability shown throughout the entire period under consideration is wholly encompassed by the schedular criteria for the ratings assigned, and consequently those criteria are not inadequate. The Veteran's symptom complaints, featuring pain, weakness, fatigability, and limitation of the motion of his spine, are contemplated by Diagnostic Codes 5285 and 5291 (in effect prior to September 26, 2003) and current Diagnostic Code 5235 (2012), together with the applicable regulatory provisions concerning functional loss (38 C.F.R. §§ 4.40, 4.45, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). The Veteran has not alleged any symptoms or impairment that exist but are not encompassed by schedular criteria. Therefore, referral for consideration of an extraschedular rating is not necessary. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). In Floyd v. Brown, 9 Vet. App. 95 (1996), the Court held that the Board may not assign an extraschedular disability rating under 38 C.F.R. § 3.321(b)(1) in the first instance because 38 C.F.R. § 3.321(b)(1) establishes a specific procedure requiring all claims under that provision to be referred to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for initial decision. However, the Court held that the Board may be required to consider the applicability of 38 C.F.R. § 3.321(b)(1) when the issue has been raised before the Board. The Veteran's single service-connected disability is status post compression fracture T11 and T12, rated 20 percent (effective from May 1998). Thus, the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. Hence, the Board will now consider whether the Veteran is entitled to consideration for extraschedular rating under 38 C.F.R. § 4.16(b). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and only asks for a TDIU rating because of "subjective" factors that the "objective" rating does not consider. Vittese v. Brown, 7 Vet. App. 31, 34-35 (1994). "Substantially gainful employment" is that employment "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." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "marginal employment shall not be considered substantially gainful employment." In Moore, 1 Vet. App. at 359, the Court further discussed the meaning of "substantially gainful employment." The Court noted the following standard announced by the United States Court of Appeals for the 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. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Notably, the Veteran has been examined multiple times to determine whether he is unemployable as a result of his service-connected disabilities. See Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (where an appellant presents evidence of unemployability, VA has a duty to supplement the record by obtaining an examination which includes an opinion as to what effect the appellant's service-connected disability has on his ability to work). The fact that the Veteran is unemployed does not support the conclusion that the Veteran is unemployable due to his service-connected disability alone. The fact that he was no longer able to maintain his last employment also does not establish that he is unemployable. See Van Hoose, 4 Vet. App. at 363. The Board finds that referral for extraschedular consideration is not indicated. Following the Veteran's submission of his claim for a total rating for compensation based upon individual unemployability, the RO had him examined to determine if his service-connected disability renders him unemployable. At the time, he had submitted a copy of a 1998 decision by the California Unemployment Insurance Program that awarded him unemployment benefits. The Administrative Law Judge determined that the Veteran's back injury in service prevented him from being "able to perform his regular or customary work." An April 2000 VA examination report shows the examiner determined that, "Because of his existing medical problems, I consider this veteran NOT EMPLOYABLE at this time." (Capitals in original.) An October 2004 VA examination report shows the examiner made the following determination, in part: Thus, based upon this examination and review of records, it would be my opinion that there is no indication for unemployability on the basis of his described back symptoms. Apparently, he has significant problems related to his knees which may render him unemployable. Further, it appears that the veteran's current disability ratings are based more on the basis of his symptoms (claims of pain) and are difficult to be attributed to any clinical orthopedic pathology. A July 2010 VA examination report presents an examiner's opinion, informed by direct inspection of the Veteran and the claims-file, that "I see no reason why he would not be able to find and hold employment, particularly if vigorous physical activity was not required, based on my evaluation." The examiner reaffirmed this opinion in a November 2010 addendum, also confirming that he found the Veteran's service connected compression fracture to be "very mild" such that it "would not be expected to give rise to the symptoms which the veteran has identified." The examiner maintained these opinions again in a June 2011 addendum, explaining that the Veteran "would be a candidate for sedentary work where he was allowed to get up and walk around at his discretion. These requirements would fit a variety of clerical/administrative occupations." A March 2013 VA examination report presents another pertinent VA examiner's opinion informed by examination of the Veteran and review of the claims-file. The examiner opined that the Veteran's disability would prohibit work duties that demand strenuous physical exertion or involve other specified characteristics and types of tasks (discussed in the report), but the "veteran's disability should not limit his ability to perform sedentary tasks that are common in clerical and administrative positions." The Board finds that the evidence against the finding that the Veteran is unable to obtain or maintain substantial gainful employment outweighs the evidence that supports that finding. In the 1998 decision by the California Unemployment Insurance Program, the Administrative Law Judge noted the standard of determining whether a person is disabled from working, which differs from VA's standard. Findings by that body are not binding on VA. Additionally, that body determined that the Veteran's disability was with the entire lower spine. The Veteran's service-connected disability involves the thoracic spine only. The most probative evidence as to whether the Veteran is unable to work due to his service-connected compression fracture of T11 and T12 is in the October 2004, July 2010 (including as amended), and March 2013 VA examination reports. The VA examiners thoroughly reviewed the evidence of record and reported clinical findings in detail. They were aware of the specific disability the Veteran has service connected, and determined that he was not rendered unemployable by such disability. Notably, the April 2000 VA examiner who found the Veteran not employable, did not identify the "existing medical problems" that rendered him so. The October 2004, July 2010, and March 2013 examiners also provided rationale for their opinions , which heightens their probative value. The opinions discuss the Veteran's particular occupational limitations and their causes in explaining that the service-connected disability does not entirely preclude him from employment. Accordingly, the Board finds that referral for extra-schedular consideration under the provisions of 38 C.F.R. § 4.16(b) is not warranted. For the reasons noted above, the evidence does not support a finding that the Veteran is unemployable because of his service-connected disability, alone. Accordingly, the preponderance of the evidence is against his claim for a TDIU rating. ORDER A rating in excess of 20 percent for residuals of compression fracture at T11, T12 is denied. A TDIU rating is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs