Citation Nr: 1330092 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 08-30 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in an October 2001 rating decision denying service connection for a lumbar spine disability. 2. Entitlement to an effective date prior to June 7, 2007, for the grant of service connection for degenerative joint disease and degenerative disc disease of the lumbar spine. 3. Entitlement to an initial rating greater than 50 percent disabling for degenerative joint disease and degenerative disc disease of the lumbar spine. 4. Entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2009 and December 2009 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his daughter provided testimony at a June 2012 Board hearing, a transcript of which is associated with the claims file. During the June 2012 Board hearing, the Veteran submitted additional medical evidence pertaining to the issues on appeal, along with a waiver of review by the RO. In its December 2012 remand, the Board directed that the RO adjudicate the Veteran's CUE claim in the first instance, and then readjudicate the remaining issues on appeal. The adjudication and readjudication was completed in the April 2013 Supplemental Statement of the Case (SSOC). Although the adjudication of the CUE claim was not conducted in a rating decision as directed in the Remand directives, upon review of the record as a whole, it is clear the Veteran's contentions throughout this appeal have centered, in large part, upon error in the October 2001 rating decision. The Veteran responded to the April 2013 SSOC asking that the appeal be forwarded to the Board immediately, indicating his continued desire for appellate review. Accordingly, although the initial adjudication of the CUE claim was accomplished in an SSOC, remand solely to change the styling of the adjudication to a rating decision would needlessly delay the claim and serve no useful purpose. It is clear from the record that the Veteran believes there is CUE in the October 2001 rating decision and desires appellate review of such claim. Accordingly, the Board will accept jurisdiction of this issue at this time, as intertwined with the properly perfected appeal concerning an earlier effective date for the award of service connection for the lumbar spine disability. FINDINGS OF FACT 1. The unappealed October 2001 rating decision, which denied service connection for a lumbar spine disability, considered the correct evidence and law as it then existed, did not involve an error that would undebatably lead to a different result if such error were corrected, and was supported by the evidence then of record. 2. The Veteran's most recent request to reopen his claim for service connection for a lumbar spine disability was received by VA on June 7, 2007. 3. The Veteran's lumbar spine disability is manifested by limitation of motion and moderate radiculopathy of both lower extremities which is related to the lumbar spine disability, but not by bladder or bowel impairment, or by incapacitating episodes of intervertebral disc syndrome having a duration of greater than 6 weeks over the past year. 4. The competent evidence of record demonstrates that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The October 2001 rating decision did not contain clear and unmistakable error (CUE). 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2012). 2. The criteria for an effective date prior to June 7, 2007, for the grant of service connection for a lumbar spine disability have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 3. The criteria for an initial rating greater than 50 percent disabling for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 4. The criteria for a 20 percent separate rating for moderate radiculopathy of the right lower extremity as related to the Veteran's lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 5. The criteria for a 20 percent separate rating for moderate radiculopathy of the left lower extremity as related to the Veteran's lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 6. The criteria for a total rating for compensation purposes based upon individual unemployability (TDIU) have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A January 2008 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration (SSA) disability determination and the related medical records were obtained in August 2009. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The February 2009, September 2009, and January 2012 VA examinations were adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying the onset, nature, and severity of the Veteran's back disability and asserted unemployability, and inquired as to the treatment the Veteran had received and was currently receiving in an attempt to identify any outstanding treatment records or other pertinent evidence not currently associated with the claims file. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2), nor has he identified any prejudice in the conduct of the Board hearing. Rather, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that no further action pursuant to Bryant is necessary and the Veteran is not prejudiced by a decision at this time. Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). CUE Claim The question of whether CUE is present in a prior determination is analyzed under a three-pronged test. First, it must be determined whether either the correct facts, as they were known at the time, were not before the adjudicator, that is, more than a simple disagreement as to how the facts were weighed and evaluated; or that the statutory or regulatory provisions existing at that time were incorrectly applied. Second, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). According to the Court, CUE is a very specific and rare kind of error. It is the kind of error to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). The Court has defined CUE as administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992). However, the mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The Court has also held that the failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). The October 2001 rating decision denied service connection for a lumbar spine disability. As discussed elsewhere in this decision, review of the record does not reflect that an appeal was perfected with respect to this decision, or that new and material evidence was submitted within the one-year period that followed notice of that decision. Thus, it is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104(a), 3.156 (2012). Under the applicable criteria, RO decisions that are final and binding will be accepted as correct in the absence of CUE. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). The October 2001 rating decision denied service connection for a lumbar spine disability on the basis that the record did not establish a relationship between the Veteran's military service and his back disability, to include the 1991 laminectomy. At the time of that rating decision, the pertinent evidence of record consisted primarily of the Veteran's service treatment records, and post-service medical evidence dated in June 1991 and April 1992. The Veteran's October 1965 service entrance examination showed notations of chronic low back pain, but no chronic back disability was diagnosed, and no injuries to the back were noted during the Veteran's military service. The Veteran's September 1968 service separation examination noted no diagnosed back disability; on the September 1968 report of medical history, the Veteran denied experiencing back pain. Although May 1967 records reflect that the Veteran was involved in a motor vehicle accident, those records reflect injuries to his teeth and facial skin (lacerations), not to his back; the June 1985 report of medical history also notes the Veteran's narrative denial of any injury stemming from that accident other than dental injury and forehead lacerations. The June 1977 and June 1981 periodic medical examinations for the National Guard document no back symptoms or diagnosed back disability; the June 1977 report of medical history reflects the Veteran's denial of recurrent back pain. A November 1984 private record noted the Veteran's report of increasing back pain after hurting his back at work the week before, and a November 1984 lumbar spine X-ray showed irregularity and sclerosis in anterior/superior aspect of L4, slight narrowing of L3-L4 interspace, which could possibly represent the effect of old injury although sclerotic appearance indicates it was not of recent origin. Further, a June 1991 private record noted that the Veteran reported having no has no previous history of back problems, but had recently injured his back, and had pain running down his left leg. X-rays showed abnormalities at L-4 with either spurring or possibly a compression fracture. Similarly, an April 1992 private record noted the Veteran's 1991 laminectomy to remove a herniated disc, and that the Veteran currently experienced mid-back pain from lifting a die out of a press at work. X-rays showed degenerative changes in the lower thoracic spine; the physician prescribed a work restriction. Other April 1992 documentation reflects that the Veteran filed a claim for workers compensation regarding his at-work injury that month. The Veteran's June 1993 National Guard periodic examination also notes the 1991 laminectomy; the October 1996 Annual Medical Certificate completed by the Veteran noted that he had sustained a back injury in 1991 for which he had sought worker's compensation benefits. A June 2000 service treatment record noted that the Veteran was given a permanent profile to avoid running or sit-ups, secondary to a slipped disc at the L5-S1 vertebras. A November 2000 Annual Medical Certificate completed by the Veteran noted his report that he had injured his back at work and had received worker's compensation benefits. Based upon the evidence before the RO at the time of the October 2001 rating decision, the RO was clearly within the bounds of "rating judgment" when it reached the conclusion that service connection was not warranted. See Porter v. Brown, 5 Vet. App. 233 (1993); see also Kronberg v. Brown, 4 Vet. App. 399 (1993). The evidence of record at the time of the October 2001 rating decision, while noting that the Veteran reported a history of back symptoms on service entrance, reflected that the Veteran did not have a diagnosed back disability on service separation from active duty service in October 1968. It also noted that he had no back disability at the June 1977 and June 1981 periodic examinations while in the National Guard, even though he asserted that his back problems began during active duty. Records dated between 1984 and 1992 note at least two occasions where the Veteran injured his back while working for civilian employers, and that the back disability to include his history of lumbar laminectomy in 1991 was noted on the June 2000 examination report. Even assuming, for the sake of argument, the Veteran sustained an injury during service in 1967 or 1968 as he has alleged and reported to the February 2009 VA examiner, which is not documented anywhere in the Veteran's records, it is debatable whether the evidence of record at the time of the October 2001 rating decision established a nexus between the lumbar spine disability shown by the record and the Veteran's his military service. Accordingly, the October 2001 rating decision's denial was not CUE. See Damrel, 6 Vet. App. at 245. To the extent that the Veteran argues that his service treatment records were not considered at the time of the October 2001 rating decision, both the October 2001 rating decision and the May 2002 statement of the case reflect that the Veteran's service treatment records were reviewed and considered. Further, review of the record reveals that in conjunction with his June 2007 claim to reopen the issue of entitlement to service connection for a low back disability, the Veteran submitted a November 2001 National Guard annual medical certificate. This record noted that the Veteran had been prescribed medications for his back, and had undergone a laminectomy in 1991. The examining physician found it required further evaluation; the Veteran was ultimately given a permanent profile with scores of 3 for the "H" and "L" parts of the PULHES scale, but was still found fit for duty. While the Board notes that this record is relevant to the Veteran's claim, it did not exist at the time of the October 2001 rating decision. While it appears to have been associated with the claims file and considered in the context of the March 2002 statement of the case, it still does not establish that the Veteran injured his back during service as opposed to at a civilian workplace, and does not establish a nexus between the Veteran's back disability and his active military service. Considering the evidence available at the time of the RO's October 2001 rating decision, along with the legal authority then in effect, the Board finds that such RO decision was reasonably supported by the evidence then of record and prevailing legal authority, and the decision was not undebatably erroneous. Under such circumstances, the October 2001 decision was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a). Effective Date Claim At his June 2012 video hearing, the Veteran testified that he claimed entitlement to an earlier effective date for the grant of service connection for a lumbar spine disability because the October 2001 rating decision denied his claim partially on the basis that there was no evidence of a back injury in service, when there was actually evidence in the record that he had in fact sustained such an injury. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110 (West 2002) 38 C.F.R. § 3.400 (2012). Service connection for a lumbar spine disability was denied in an October 2001 rating decision; notice of the grant of service connection was mailed to the Veteran that month. A claimant has one year from the date of notice of a RO decision in which to submit a notice of disagreement. 38 U.S.C.A. § 7105(b). If a notice of disagreement is not received within one year of the notice, the decision becomes final. 38 U.S.C.A. § 7105(c). Following notice of the October 2001 rating decision, the Veteran filed a notice of disagreement in October 2001, and VA issued a statement of the case in March 2002, which was mailed to the Veteran in May 2003. However, no relevant communication regarding the denial of service connection was received after the statement of the case was issued until the Veteran filed a claim to reopen the issue of entitlement to service connection in June 2007. In the absence of a timely substantive appeal filed in response to the statement of the case, the October 2001 rating decision is final. Final decisions can be revised in only two ways. First, they can be reopened upon submission of new and material evidence. Because the effective date for a grant based on new and material evidence can be no earlier than the date of application to reopen, reopening based on new and material evidence can never result in an earlier effective date. 38 U.S.C.A. § 5110(a) (West 2002); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005). The second route to an earlier effective date is through a successful claim of clear and unmistakable error (CUE) in the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a) (2012). But the Board decision above has found that there was no CUE in the October 2001 rating decision denying service connection for a lumbar spine disability. This includes VA's failure to conduct a VA examination in conjunction with the Veteran's original claim for service connection. A breach of a duty to assist cannot constitute CUE. Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002); see also 38 C.F.R. § 20.1403(c) (citing as example that VA's failure to fulfill the duty to assist does not constitute CUE.) As noted above, the RO concluded that June 7, 2007, was the appropriate effective date for grant of service connection for a lumbar spine disability, because the Veteran's most recent claim to reopen the issue of entitlement to service connection for a lumbar spine disability was received by VA on that date. There is no correspondence or any other document in the claims file which could be construed as a claim for service connection for a lumbar spine disability, received by the RO after the statement of the case was issued and prior to the Veteran's June 7, 2007, claim to reopen. While correspondence was received from the Veteran in December 2002, April 2004 and May 2004, such correspondence specifically referred to a dental claim, with no mention of a lumbar spine claim. The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012). An informal claim must identify the benefits sought. 38 C.F.R. § 3.155(a) (2012). As these documents do not mention the Veteran's back claim, they cannot serve as an informal claim for service connection for his back disability, nor can the December 2002 correspondence be considered a substantive appeal to the May 2002 statement of the case in the absence of any mention of the back claim. 38 C.F.R. §§ 20.202, 20.302. In summary, the October 2001 rating decision denying service connection for a lumbar spine disability became final when his appeal of that decision was not timely perfected. The next correspondence in the record seeking entitlement to service connection for a back disability was received on June 7, 2007. As noted above, the effective date for an award of compensation for a reopened claim shall be no earlier than the date of receipt of the claim. Accordingly, the appropriate effective date is June 7, 2007. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and an earlier effective date for the grant of service connection for a lumbar spine disability is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Initial Rating Claim Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 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 disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (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). Service connection for lumbosacral strain was granted in a February 2009 rating decision, with an initial 50 percent rating assigned under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243. As the Veteran is not shown to suffer from ankylosis, it appears the RO determined the Veteran's limitation of motion fell within the 40 percent rating criteria, but then erroneously added a 10 percent rating under the guise of DeLuca, without following the appropriate procedural requirements of 38 C.F.R. § 3.321(b). Indeed, once the maximum rating for limitation of motion is assigned (here a 40 percent rating is the maximum for limitation of motion), DeLuca no longer applies. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In any event, the Board will not disturb the favorable evaluation assigned by the RO. Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, The Spine, Note (6) (2012). Under the General Rating Formula, an evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). 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 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Alternatively, the Veteran's lumbar spine disability can be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Forumula). In pertinent part, an evaluation of 60 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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 As noted above, the Veteran is already in receipt of a rating in excess of the maximum rating for limitation of motion, despite the fact that the record fails to review any evidence of ankylosis. Ankylosis by definition requires the spine to be fixed at a given angle, and the record clearly establishes that the spine retains some range of motion. Moreover, as the Veteran is only service connected for the thoracolumbar segment of the spine, a 100 percent evaluation for ankylosis of the entire spine is not for application. Thus, to warrant a higher evaluation, the Veteran's back disability must result in incapacitating episodes of intervertebral disc syndrome totaling at least 6 weeks during the past 12 months, or the Veteran must have neurological impairments that can be separately rated from his orthopedic manifestations. The Board will first address whether separate evaluations for neurological impairments related to the Veteran's lumbar spine disability. While the Veteran has repeatedly reported bladder and bowel problems, to include at each of the three VA examinations of record as well as in January 2009 and March 2009 private treatment records, the evidence establishes that these symptoms are due to other causes. Specifically, the February 2009 VA examiner concluded that the Veteran's bladder problems - specifically nocturia - were due to his benign prostatic hypertrophy. As to his bowel problems, a March 2009 private treatment record found that the Veteran's fecal incontinence was not explained by an MRI, casting doubt as to a possible lumbar spine etiology; further, the January 2012 VA examiner found that the Veteran's intermittent bowel symptoms were not consistent with being related to spine condition. Accordingly, separate ratings for bowel or bladder symptoms are not warranted. However, the Board finds that separate ratings are warranted for bilateral lower extremity neurologic impairment. The Veteran reported at the September 2009 VA examination that he had numbness in his bilateral legs. Similarly, at the January 2012 VA examination, the Veteran reiterated that he experienced moderate intermittent pain of the bilateral lower extremities; the examiner found that this was caused by involvement of sciatic nerve bilaterally in lower extremities, and constitutes moderate radiculopathy in both lower extremities. Neurologic impairment of the sciatic nerve is rated under Diagnostic Code 8520, which assigns a 20 percent rating for moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). On this basis, separate 20 percent ratings for each lower extremity are warranted based on the examiner's finding of moderate radiculopathy. A higher rating for incomplete paralysis or complete paralysis is not warranted as the 2012 VA examination noted full muscle strength in the lower extremities, no atrophy, normal sensory examination, no paresthesias or dysesthesias and no numbness. Although hypoactive knee jerks and absent ankle jerks were noted, along with intermittent pain in the extremities that was deemed moderate, the totality of the evidence is consistent with the examiner's conclusion of moderate radiculopathy. The provisions of 38 C.F.R. § 4.71a indicate that intervertebral disc syndrome should be evaluated under the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The decision above has continued the 50 percent rating assigned under the General Rating Formula, and granted separate 20 percent ratings for right lower extremity and left lower extremity radiculopathy. Thus, the combined disability rating for the orthopedic and neurologic manifestations of his back disability is now 70 percent. 38 C.F.R. §§ 4.25, 4.26 (2012). As the maximum rating available under the IVDS Formula is 60 percent, it is less advantageous to rate the Veteran under the IVDS Formula, and no further discussion on this point is necessary. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. The decision above assigns separate 20 percent ratings for the Veteran's moderate radiculopathy of each lower extremity that have been medically linked to the Veteran's lumbar spine disability. However, the preponderance of the evidence is against the assignment of a higher rating for the Veteran's lumbar spine disability, or other separate ratings based on neurologic impairment. There is no further doubt to be resolved, and higher or separate ratings other than those assigned herein are not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. TDIU Claim VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The evidence establishes eligibility to TDIU on a schedular basis. His lumbar spine disability is rated as 50 percent disabling; combined with his other service-connected disabilities, to include the 20 percent separate ratings for right lower extremity radiculopathy and left lower extremity radiculopathy assigned by this decision plus the cystic acne and facial scars, his combined schedular rating is 70 percent disabling. Further, the evidence establishes that the Veteran is also unable to secure and follow a substantially gainful occupation by reason of his service-connected back disability and the related lower extremity neuropathy. 38 C.F.R. §4.16(b). The May 2002 determination of the SSA concluded that Veteran was disabled from working secondary to disorders of back (discogenic and degenerative), and found that his allegations as to his back pain and other symptomatology were credible. The SSA's determination is not necessarily binding on VA, which is subject to different regulations. Holland v. Brown, 6 Vet. App. 443 (1994). Still, it can be probative evidence for VA claims, especially those for TDIU. Moreover, the September 2009 VA examiner found that the Veteran's lumbar spine disability precluded him from engaging in any physical or sedentary work, as it even precluded him from completing some of his activities of daily living. The January 2012 VA examiner noted that the Veteran could not lift more than a gallon of milk, and for a sedentary job, could not sit for more than 10 minutes before having to get up and walk around or shift positions, and would require a job where he could get up and move around or lie down when he has too much pain. Ultimately, it is difficult for the Board to contemplate a position of gainful employment where the Veteran would be able to get up and walk around or lie down after 10 minutes of sitting. The Veteran's assertions as to his occupational impairment secondary to his lumbar spine disability in the context of employment have been confirmed by the objective evidence of record. Accordingly, entitlement to TDIU is granted. ORDER The appeal as to whether there was CUE in the October 2001 rating decision denying service connection for a lumbar spine disability is denied. An effective date prior to June 7, 2007, for the grant of service connection for degenerative joint disease and degenerative disc disease of the lumbar spine is denied. An initial rating greater than 50 percent disabling for degenerative joint disease and degenerative disc disease of the lumbar spine is denied. A 20 percent separate rating for lumbar radiculopathy of the right lower extremity is granted, subject to the applicable regulations concerning the payment of monetary benefits. A 20 percent separate rating for lumbar radiculopathy of the left lower extremity is granted, subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to TDIU is granted, subject to the applicable regulations concerning the payment of monetary benefits. ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs