Citation Nr: 1331750 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 07-00 078A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for lumbar spine degenerative disc disease prior to June 24, 2010. 2. Entitlement to a disability rating in excess of 50 percent for lumbar spine degenerative disc disease for the period June 24, 2010 to March 10, 2013. 3. Entitlement to a disability rating in excess of 60 percent for lumbar spine degenerative disc disease from March 11, 2013. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1980. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an April 2004 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in San Diego, California, which continued a 20 percent evaluation for the Veteran's lumbar spine disability. In an August 2004 rating decision, the RO increased the Veteran's disability rating to 40 percent, effective December 10, 2003. In a February 2008 rating decision, the RO assigned a temporary 100 percent evaluation for the period of March 24, 2007 through May 31, 2007 based on treatment requiring convalescence. The Board's analysis contemplates the schedular rating awarded for periods other than when a 100 percent rating was in effect. Thereafter, in a March 2013 rating decision, the VA Appeals Management Center ("AMC") increased the Veteran's disability rating to 50 percent, effective June 24, 2010, and to 60 percent, effective March 11, 2013. Despite the assignment of an increased disability evaluation for this disorder, the issues remain in appellate status because the Veteran has continued to express disagreement with the assigned ratings. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (a rating decision issued after a notice of disagreement which grants less than the maximum rating available does not "abrogate the pending appeal"). The Veteran's claims have since been transferred to the Phoenix, Arizona RO. The Board notes the Veteran was scheduled for hearings before the Board in January, February and May 2012, however, he failed to show up for any of the hearings. The Veteran has not offered a statement of good cause as to why he missed the hearing, and he has not since requested another hearing. Thus, the Board will proceed as if his hearing request had been withdrawn. 38 C.F.R. § 20.702(d) (2012). The Board has previously considered these claims. In June 2012, the Board remanded the claims to the RO for additional evidentiary development, specifically, to obtain the Veteran's Social Security Administration ("SSA") treatment records and afford him another VA examination. As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). The Board observes that, during the pendency of this appeal, the Veteran's low back disease was recharacterized as degenerative disc disease of the lumbosacral spine. It is noted that the Veteran is in receipt of separate ratings for decreased sensation of the bilateral lower extremities with sciatica secondary to his service-connected degenerative disc disease of the lumbosacral spine as of December 2003. An increased rating was granted in a March 2013 RO decision. The Veteran has not appealed for a higher rating and the matter of an increased rating for neurological impairment is not on appellate review. The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly-secured electronic repository is used to store and review every document involved in the claims process. The Board finds that the record reasonably raises the question of whether the Veteran is unemployable due to his service-connected back disability, and that there is a derivative claim for a TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU is part and parcel of the appeal for a higher rating. Rice, supra. The claim for TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. For the period prior to June 24, 2010, the Veteran's lumbar spine disease was manifested by complaints of stiffness; objective findings of low back pain, but without ankylosis, incapacitating episodes, guarding, appreciable muscle spasms or bowel or bladder incontinence; forward flexion of the thoracolumbar spine not less than zero to 30 degrees; extension of the thoracolumbar spine not less than zero to 5 degrees; and bilateral lateral rotation of the thoracolumbar spine not less than zero to 15 degrees; and bilateral lateral rotation of the thoracolumbar spine not less than 30 degrees; and combined range of motion of the thoracolumbar spine not less than 125 degrees. 2. For the period June 24, 2010 to March 10, 2013, the Veteran's lumbar spine disease was manifested ankylosis of the entire thoracolumbar spine, without evidence of bowel or bladder incontinence; there was no evidence of incapacitating episodes of at least 6 weeks out of 12-month period. 3. Since March 11, 2013, the Veteran's lumbar spine lumbar spine disease has been manifested by ankylosis of the complete thoracolumbar spine without evidence of bowel or bladder incontinence; and incapacitating episodes at least 6 weeks out of the previous 12-month period. CONCLUSIONS OF LAW 1. For the period prior to June 24, 2010, the criteria for an evaluation in excess of 40 percent for lumbar spine degenerative disc disease were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Code 5243 (2012). 2. For the period June 24, 2010 to March 10, 2013, the criteria for an evaluation in excess of 50 percent for lumbar spine degenerative disc disease were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Code 5243 (2012). 3. Since March 11, 2013, the criteria for an evaluation in excess of 60 percent for lumbar spine degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a 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), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, the Board notes that service connection had already been established and the current appeal arose from a claim of entitlement to an increased disability rating. The Veteran filed his claim for an increased rating in December 2003. By means of a preadjudication letter dated January 2004, the Veteran was informed that he should provide evidence showing that the symptoms of his service-connected disability had increased in severity, was notified of the types of evidence, both lay and medical, that could be submitted in support of a claim for an increased rating, was advised of the division of responsibility between himself and VA for obtaining the required evidence, and was asked to provide any information or evidence in his possession that pertained to such claims. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). A subsequent letter, dated March 2006, satisfied the requirements of Dingess/Hartman and informed the Veteran of how VA determines the disability rating and effective date elements of a claim. An August 2005 Statement of the Case ("SOC") provided the Veteran with the rating criteria under which his claim has been evaluated, and also cured any timing defect with respect to the untimely notice provided in March 2006. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, and VA examination reports dated February 2004, November 2005, November 2010, June 2011 and March 2013. Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the examination reports shows that the examiners reviewed the complete claims folder, elicited from the Veteran a history of his claimed symptomatology and treatment, performed the requisite physical examinations, including a review of diagnostic test results, and provided findings detailing the results of the examinations. In this respect, the Board notes that, although the Veteran was scheduled to appear for the June 2011 examination, it appears that he was never notified of this examination. Accordingly, the VA examiner provided an opinion without performing a physical evaluation. As noted above, however, the Veteran was subsequently afforded another examination in March 2013, in which the examiner provided the requisite information. Accordingly, the Board finds that the examination reports, taken as a whole, are sufficient to adjudicate the claims. In addition to the aforementioned records, the claims folder also contains the Veteran's SSA records, including medical treatment reports. These records show that the Veteran applied for, and is receiving SSA disability insurance benefits for a primary diagnosis of disorders of the back, discogenic and degenerative. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the claims has been consistent with the provisions of the VCAA. The appellant has been provided every opportunity to submit evidence and argument in support of his claims and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. Accordingly, the Board will proceed to a decision on the merits. II. Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate Diagnostic Codes ("DC") identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue, and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2012). 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id. With regard to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The Court has held that the Board must determine whether there is evidence of weakened movement, excess fatigability, incoordination, or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); 38 C.F.R. § 4.40. Furthermore, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The fact that the revised criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). The Veteran filed his claim in December 2003, following the various amendments of the spine regulations. The current applicable law is the General Rating Formula for Diseases and Injuries of the Spine as well as the criteria pertaining to Intervertebral Disc Syndrome. General Rating Formula- For unfavorable ankylosis of the entire spine (100 percent); For unfavorable ankylosis of the entire thoracolumbar spine (50 percent); For unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); and For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height (10 percent). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 68 Fed. Reg. 51,443, Note (5) (Aug. 27, 2003). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. Id., Note (1). 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. Id., Note (2); see 38 C.F.R. § 4.71a, Plate V. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 68 Fed. Reg. 51,443, Note (2) (Aug. 27, 2003). The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, disability is evaluated as follows: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, assignment of a 60 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, assignment of a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, assignment of a 20 percent evaluation is warranted. With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, assignment of a 10 percent evaluation is warranted. The notes for rating intervertebral disc syndrome under this regulation state as follows: Note (1): 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. Note (2): if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. III. Analysis The Veteran's chronic back disability has been evaluated under 38 C.F.R. § 4.71a, DC 5237, lumbosacral or cervical strain, under the General Rating Formula for Diseases and Injuries of the Spine. In this case, his symptomatology has been located chiefly in the lumbosacral spine. In February 2004, pursuant to his claim for an increased disability evaluation, the Veteran was afforded a VA spine compensation and pension examination, at which time, he reported experiencing ever-increasing low back pain since 1980 with constant pain radiating into his lower extremities. On physical examination, his gait was slow and stiff, but he was able to ambulate without assistance. The thoracolumbar spine examination revealed paravertebral muscle tenderness and spasms with pain and radiation on movement. The range of motion for the thoracolumbar spine indicated forward flexion at zero to 80 degrees, with pain at 70 degrees; extension at zero to 30 degrees, with pain at 20 degrees; bilateral lateral flexion at 30 degrees, with pain at 20 degrees; and bilateral lateral rotation at 45 degrees, with pain at 35 degrees; the combined range of motion was 260 degrees. An x-ray revealed narrowing at the L3-L4 and L4-L5 levels with degenerative disc disease. VA Medical Center ("VAMC") outpatient treatment records for the period beginning in 2004 show the Veteran was seen for reports of increased lumbar spine pain. In July 2004, his range of motion for the thoracolumbar spine indicated forward flexion at zero to 30 degrees; extension zero to 5 degrees; and bilateral lateral rotation at zero to 15 degrees. A lumbar spine x-ray revealed mild disc narrowing at the L5 level with mild disc bulging at the L3-L4 level with desiccation. The diagnosis was chronic lumbosacral strain with bilateral sacralization and mild disc bulge. In November 2005, the Veteran was afforded another VA spine examination, at which time, he complained of constant low back pain radiating to his left lower extremity. He denied bladder or bowel symptoms and weakness, as well as periods of incapacitation. On physical examination, he displayed a normal gait and ambulated without assistance. The thoracolumbar spine showed limited and painful motion in all directions, but without evidence of paraspinal muscle spasms, tenderness or weakness. The Veteran was, however, positive for intervertebral disc syndrome. His range of motion for the thoracolumbar spine revealed forward flexion at zero to 50 degrees, with pain at 50 degrees; extension at zero to 10 degrees, with pain at 10 degrees; bilateral lateral flexion at zero to 15 degrees, with pain at 15 degrees; and bilateral lateral rotation at zero to 30, with pain at 30 degrees. The combined range of motion was 150 degrees. The examiner noted that the Veteran's range of motion was limited by pain and lack of endurance after repetitive use, with pain being the major functional impact. The revised diagnosis was degenerative disc disease, L5, with central left paracentral disc protrusion with disc space narrowing, intervertebral disc syndrome at L4-5 as well as sacralization of the fifth lumbar vertebra and impingement of the L5 descending nerve root. The examiner noted that the revised diagnosis was based on objective clinical findings and represented a chronic progression from the previous diagnosis. VAMC outpatient treatment records show that, in March 2007, the Veteran was seen in the emergency room with complaints of low back pain. A CT scan of the lumbar spine revealed greater disc space narrowing at the L4-5 level and mild progression of the disc space narrowing at the L3-4 level. An MRI performed the same day indicated disc bulges at the L3-4 and L4-5 levels. An EMG was normal without active or chronic neuropathic findings to explain his symptoms. The Veteran was ultimately hospitalized from March 24 to May 4, 2007, at which time, there were no range of motion reports. On June 24, 2010, the Veteran's private chiropractor, Dr. J. Krueger, submitted a letter to VA indicating that the Veteran had been seen for a thoracolumbar spine evaluation pursuant to his appeal with the Board. He noted that, per the Veteran's self-reported statement, an MRI performed in March 2007 revealed an L4-5 post-service disc protrusion, facet hypertrophy and disc space narrowing. He stated that a complete spinal examination was performed and revealed a diagnosis of degenerative disc disease of the lumbar spine with disc narrowing and multiple vertebral subluxations of the thoracic and lumbar spine. Significantly, he also stated that the Veteran now had a diagnosis of ankylosis spondylitis of the entire thoracolumbar spine. However, neither Dr. Krueger, nor the Veteran, submitted any of Dr. Krueger's private treatment records at this time. In November 2010, the Veteran was afforded another VA examination, at which time, he reported a worsening of his back pain with flare-ups 4-5 times per week, numbness in both legs and feet, and a new diagnosis of degenerative disc disease; he denied bladder or bowel symptoms. He also said he began using a cane for ambulation, but did not have it with him, as he said it had broken. Significantly, the Veteran reported that he had been on physician-prescribed bedrest for about 14 days within the past 12 months due to low back pain. On physical examination, the Veteran displayed a normal posture and gait with no evidence of thoracolumbar spine ankylosis, tenderness or weakness, spasm, or pain with motion. The sensory examination revealed normal findings except for decreased sensation in the right foot and ankle. The examiner noted, however, that because the Veteran said that he could not move or bend, and would not even make an attempt, she was unable to assess the Veteran's range of motion. She was also unable to assess straight leg raises. The VA examiner diagnosed degenerative disc disease with moderate loss of function, pending x-ray reports (which showed sacralization of the L5 vertebra, mild to moderate degree change of the lumbar spine involving the L4-5 and L5-S1 vertebrae, with hyperextension of the spine). She further noted that the revised diagnosis was simply a clarification and did not actually represent an increase in the severity of the Veteran's disability. In December 2010, Dr. Krueger submitted an updated letter concerning the Veteran's back disability. In addition to the previous information, he noted that the key factors in determining a diagnosis of unfavorable ankylosis of the entire spine was revealed upon an x-ray examination, adding that the orthopedic evaluation revealed a positive foraminal compression, as well as positive Soto Hall test, Valsalva's test, Kemp's sign, straight leg sitting test, Laseque's test and Ely test. The claims folder also contains one page of the Veteran's private treatment notes with Dr. Krueger for the month of April 2011. Unfortunately, the notes did not contain any range of motion measurements. In June 2011, the Veteran was scheduled to undergo another VA spine examination, however, he did not show up and subsequently reported that he had not received notice of the examination from VA. The VA physician, however, provided an opinion to explain the very different findings between the Veteran's most recent VA examination and his private chiropractor's statements. She opined that the medical evidence of record supported the November 2010 VA diagnosis of mild to moderate degenerative disc disease of the lumbosacral spine involving the L4-5 and L5-S1, which she said was consistent with the VA examination findings. In this regard, she noted that the Veteran's chiropractor's private letter included a "less than valid diagnosis of 'Ankylosis spondylitis of the entire thora -columbar spine,'" adding that there was no evidence accompanying the letter, or 2011 treatment reports to support this diagnosis. She further stated that the hallmark of this diagnosis is an abnormal appearance of the sacroiliac joint using appropriate imaging techniques, and noted that no reference to such evidence was included with Dr. Krueger's letter. She further noted that a finding of a positive HLA B27 antigen test is part of the determination of a diagnosis of ankylosing spondylitis, but no such reference was included in the chiropractor's letter. She therefore opined that the chiropractic evidence did not support the diagnosis of ankylosis spondylitis of the entire thoracolumbar spine and noted that the terminology appeared to be in error and not associated with the spinal components or joints most commonly noted to provide a diagnosis of ankylosing spondylosis. She further noted that findings associated with such a diagnosis made in June 2010 would have been evident during the November 2010 VA examination, but were not. The VA examiner included many references from the medical profession's "Up to Date" materials to support her finding, as well as a comprehensive review of the Veteran's claims folder. In July 2011, the Veteran was seen at the VAMC with complaints of increased pain and stiffness in the back from the lumbar to the cervical spine. He said he had noticed this increasing pain for the past two weeks. The Veteran was advised to use bed rest with heat for 2-3 days, along with some prescription pain medicine. In September 2012, VA received a lumbosacral spinal radiographic report from a private provider. The diagnostic impression showed that the height of the vertebral bodies was well-maintained with narrowed at the L4-5 level consistent with osteoarthritis. VA treatment reports beginning in mid-December 2012 show that the Veteran was seen with reports of having been struck by a car while in a store parking lot in Los Angeles. The impact apparently caused him to fall and lose consciousness. He was taken to a private hospital, then to the Los Angeles VAMC, where he was discharged after a CT scan of the brain revealed no acute abnormality. On December 23, he presented to the Riverside County Regional Medical Center with complaints of lower extremity pain and weakness, at which time, a CT scan of the lumbar spine showed no evidence of fracture. There was, however, moderate degenerative joint disease at the L4-5 vertebra level with bilateral neural foramina encroachment and spinal stenosis, mild degenerative joint disease of the L5-S1, and a 2-millimeter disc bulging at L3-4 level. An MRI of the lumbar spine showed degenerative joint disease particularly severe at L4-5. He was treated for five days without surgical intervention, then transferred to the Loma Linda VAMC for continued care. It was noted that he had been unable to ambulate since the accident. He was discharged to home on approximately January 10, 2013, where he continued to be on at least partial bed rest. In March 2013, the Veteran was afforded another VA spine examination, at which time, he reported having been struck by a car in December, which he said exacerbated his low back pain, preventing him from standing or walking without assistance; he presented for the examination in a wheelchair. He also reported that he was constantly numb from the knees to the toes bilaterally and had to go to the hospital about once per month for toradol pain-relief injections. He also said his lumbosacral spine pain was nearly incapacitating on a daily basis. In addition, he reported having been seen at the VAMC in January 2013, at which time, he said he was told that he was not a good candidate for back surgery due to his morbid obesity. Upon physical examination, there was localized tenderness or pain on palpation of the joints and/or soft tissue of the thoracolumbar spine. The Veteran reported that he could not stand due to his pain and was not able to get out of his wheelchair in order to attempt range of motion testing. The clinician noted that all movements of the feet, legs and back were painful, thus he was not able to determine any range of motion due to the Veteran's functional status and pain situation. He further noted that the Veteran's functional loss was due to less movement than normal, weakened movement, pain on movement, disturbance of locomotion and interference with sitting, standing and weight-bearing. Muscle strength testing revealed active movement against some resistance at all levels without evidence of atrophy. A reflex examination was normal and a sensory examination revealed absent findings for the lower leg/ankle and foot/toes. Regarding radiculopathy, the examiner found the Veteran to have mild, constant pain, moderate intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in the bilateral extremities, noting that the L4/L5/S1/S2/S3 nerve roots (sciatic) were involved bilaterally. He also found the Veteran to have intervertebral disc syndrome of the thoracolumbar spine with at least 6 weeks of incapacitating episodes during the past 12 months. An MRI from January 2013 revealed a moderate, 9 millimeter posterior disc bulge at the L4-5 level. The examiner concluded that the functional impact of the Veteran's low back disorder resulted in his being unlikely to tolerate any position that requires standing movement beyond what he could do in his wheelchair in a sedentary position. IV. Conclusion A. Entitlement to a disability rating in excess of 40 percent for lumbar spine disease prior to June 24, 2010. Based on a review of the evidence of record, the Board finds that the criteria for a disability evaluation in excess of the current 40 percent under DC 5243 for the Veteran's lumbar spine disease were not met prior to June 24, 2010. As noted above, during this portion of the period on appeal, the Veteran's disability was manifested by no greater than complaints of stiffness; objective findings of low back pain, but without ankylosis, incapacitating episodes, guarding, appreciable muscle spasms or bowel or bladder incontinence; forward flexion of the thoracolumbar spine not less than zero to 30 degrees; extension of the thoracolumbar spine not less than zero to 5 degrees; and bilateral lateral rotation of the thoracolumbar spine not less than zero to 15 degrees; and bilateral lateral rotation of the thoracolumbar spine not less than 30 degrees; and combined range of motion of the thoracolumbar spine not less than 125 degrees. The Board further observes that, during this period, there was no evidence that the Veteran's lumbar spine disability was manifested by unfavorable ankylosis of the entire thoracolumbar spine or entire spine. Moreover, although the Veteran has consistently complained of chronic low back pain such symptoms are contemplated by the assigned rating. It is acknowledged that the Veteran was hospitalized during the pendency of the appeal period (prior to June 24, 2010). The Veteran has been duly compensated for this. The RO awarded a temporary total rating for the period from March 24, 2007 to May 31, 2007. Aside from this period of hospitalization, there is no evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months such that the assignment of a 60 percent evaluation is warranted. Notably, in November 2005, the Veteran reported no periods of incapacitation. There were no subjective or objective evidence of bowel or bladder impairment. The Board has also considered whether other diagnostic codes are applicable to the Veteran's low back disability during this portion of the period on appeal. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). However, there is no evidence that the Veteran has been diagnosed with any of the following disorders as applicable to the thoracolumbar spine at any time during this portion of the appeal: vertebral fracture or dislocation, sacroiliac injury or weakness, spondylolisthesis, spinal stenosis, ankylosing spondylitis, or spinal fusion. In summary, the Board concludes that, for the period prior to June 24, 2010, the Veteran did not meet or nearly approximate the criteria for a rating in excess of 40 percent for the orthopedic manifestations of his service-connected lumbar spine disease. As such, the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application in the instant case. See generally Gilbert, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). B. Entitlement to a disability rating in excess of 50 percent for lumbar spine disease for the period June 24, 2010 to March 10, 2013. For the period June 24, 2010 to March 10, 2013, the Board finds that the criteria for a disability evaluation in excess of the current 50 percent rating under DC 5243 for the Veteran's lumbar spine disease were not met. As noted above, in a March 2013 rating decision, the AMC increased the disability rating for the Veteran's lumbar spine disability from 40 to 50 percent, effective June 24, 2010, based primarily on the findings stated in the private chiropractor letter, as well as the subsequent clinical findings substantiated in the March 2013 VA examination. As previously discussed, during this portion of the period on appeal, the Veteran's disability was manifested by no greater than objective findings of ankylosis of the entire thoracolumbar spine, without evidence of bowel or bladder incontinence. The Board further observes that, during this period, there was no evidence of unfavorable ankylosis of the entire spine such that a higher, 60 percent rating would be warranted. There is no evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months such that the assignment of a 60 percent evaluation is warranted. Specifically, during the course of a November 2010 VA compensation examination, the Veteran reported that he had been prescribed about 2 weeks of best rest in the previous 12 months. The other evidence during this time period does not reveal greater incapacitation. The Board has also considered whether other diagnostic codes are applicable to the Veteran's low back disability during this portion of the period on appeal. See Butts v. Brown, supra. In this case, although the Veteran was diagnosed with ankylosing spondylitis by his chiropractor in the June 2010 letter, the evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. Here, because the symptomatology associated with the Veteran's lumbar spine disease is duplicative or overlapping with the symptoms associated with his ankylosing spondylitis, separate ratings for these disorders is not applicable. See Esteban v. Brown, supra. It is noted that the Veteran was awarded SSA disability benefits in November 2010 with a primary diagnosis of back disability and a secondary diagnosis of obesity and hyperalimentation. SSA decisions are not, however, controlling for VA purposes. Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). It is noted that the SSA award was not based solely on service-connected back impairment. Thus, it is of diminished probative value. The Board finds the medical evidence on file, which is discussed above, more probative as it directly assesses the severity of the back disability such that the rating criteria can be properly applied to the exclusion of other non-service-connected impairment. In summary, the Board concludes that, for the period June 24, 2010 to March 10, 2013, the Veteran did not meet or nearly approximate the criteria for a rating in excess of 50 percent for his service-connected lumbar spine disease. As such, the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application in the instant case. See generally Gilbert, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). C. Entitlement to a disability rating in excess of 60 percent for lumbar spine disease from March 11, 2013. Based on a review of the evidence of record, the Board finds that, for the period beginning March 11, 2013, the criteria for a disability evaluation in excess of the current 60 percent under the Formula for Rating Intervertebral Disc Syndrome for the Veteran's lumbar spine disease have not been met. As noted above, during the March 2013 VA examination, the examiner found that the Veteran could not perform any range of motion movements because all movements of his feet, legs and back were painful. At this time, the Veteran's lumbar spine disability was manifested by ankylosis of the complete thoracolumbar spine without evidence of bowel or bladder incontinence; and incapacitating episodes at least 6 weeks out of the previous 12-month period. Thus the maximum evaluation of 60 percent is warranted under the IDVS criteria. During this period, the symptoms of the Veteran's lumbar spine disease also did not meet the criteria for a 100 percent disability rating under DC 5243, as there was no evidence that he had unfavorable ankylosis of the entire spine. Accordingly, a higher disability rating is not available under any diagnostic code under the General Rating Formula for Diseases and Injuries of the Spine. In summary, the Board concludes that, for the period beginning March 11, 2013, the Veteran has not met or nearly approximated the criteria for a rating in excess of 60 percent for the orthopedic manifestations of his service-connected lumbar spine disability. In evaluating the Veteran's claims, the Board has also considered whether he is entitled to a greater level of compensation on an extra-schedular basis during any portion of the period on appeal. Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation 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, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. Throughout the period on appeal, the Veteran has complained of chronic pain in the lumbar area of the spine. The diagnostic codes used herein to evaluate the disability at issue consider the symptoms reported and shown on objective evaluation. In other words, there are no symptoms that are unusual or different from those contemplated by the schedular criteria. The Veteran does not demonstrate exceptional or unusual disability; he merely disagrees with the assigned evaluations for his levels of impairment. Accordingly, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) is not warranted. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Finally, in addition to the medical evidence, the Board has also considered the Veteran's personal assertions concerning the severity of his lumbar spine disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability ratings reflect. Medical evidence is generally required to address questions requiring medical expertise. However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. ORDER For the period prior to June 24, 2010, entitlement to a disability rating in excess of 40 percent for a lumbar spine disease is denied. For the period June 24, 2010 to March 10, 2013, entitlement to a disability rating in excess of 50 percent for a lumbar spine disease is denied. For the period beginning March 11, 2013, entitlement to a disability rating in excess of 60 percent for a lumbar spine disease is denied. REMAND The Board finds that the record reasonably raises the question of whether the Veteran is unemployable due to his service-connected disability to include his back disability. See June 2013 post-remand brief. This raised TDIU claim needs to be further developed, so the Board is remanding this matter. See VAOGCPREC 6-96 (Aug. 16, 1996); VAOGCPREC 12-2001 (July 6, 2001). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with appropriate notice regarding the derivative TDIU claim, and send him a TDIU application (VA Form 21-8940) and ask him to complete and return it. Ask him to provide the names and addresses of all VA or private medical care providers that have evaluated or treated him for his service-connected disabilities. With his authorization, obtain all identified records that are not already in the claims file. If attempts to obtain these records prove unsuccessful, and it is determined that further attempts would prove futile, then document this in the file and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(e) . 2. Then, schedule the Veteran for a VA medical examination to determine the effect of his service-connected disabilities on his employability. The claims file, including a complete copy of this remand, must be made available to and thoroughly reviewed by the examiner for the pertinent medical and other history. Based on examination findings and other evidence contained in the claims file, the examiner must offer an opinion as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran is unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities. The examiner must consider the Veteran's level of education, experience, and occupational background in determining whether he is unable to secure or maintain substantially gainful employment in light of his service-connected disabilities. The examination report must include a complete rationale for all opinions and conclusions expressed. 3. Then readjudicate the claim for TDIU, in light of the additional evidence. If the claims are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs