Citation Nr: 1334227 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-41 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease of the lumbar spine with L4-L5 instrumentation and fusion (also referred to as low back disability), evaluated as 20 percent disabling prior to August 14, 2009, and 40 percent disabling since August 14, 2009. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from June 1994 to April 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied a disability rating greater than 20 percent disability rating for the service-connected low back disability. After receiving notice of this decision, the Veteran perfected a timely appeal of the denial of a rating greater than 20 percent for this service-connected disability. During the pendency of the Veteran's appeal, and specifically in the March 2010 rating action, the RO increased the disability evaluation for the service-connected low back disability to 40 percent, effective August 14, 2009. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found). The Veteran has not expressed satisfaction with these ratings. Accordingly, both these issues remain in appellate status for the entire appeal period. AB v. Brown, 6 Vet. App. 35 (in which the United States Court of Appeals for Veterans Claims (Court) stipulated that, unless a veteran expresses a desire for a specific rating for a service-connected disability, he/she is presumed to be seeking the maximum benefit permitted under the regulations). The Board notes that after the March 2010 rating decision was issued, the Veteran submitted a statement in April 2010 requesting a 40 percent rating for the service-connected low back disability for the period prior to August 14, 2009. It appears that the Agency of Original Jurisdiction (AOJ) mistakenly construed this statement as a claim for entitlement to an effective date prior to August 14, 2009 for the grant of a 40 percent rating for the service-connected low back disability. Although the appeal for an effective date prior to August 14, 2009 has been adjudicated by the RO, the Board finds that the Veteran's intent, as expressed in the April 2010 letter, was to convey his disagreement with the March 2010 rating decision, and a request for a higher rating for the period from May 31, 2007 (date of claim) to August 14, 2009. As such, the Board construes this claim as an appeal for an increased rating for the low back disability, evaluated as 20 percent disabling prior to August 14, 2009, and 40 percent disabling since August 14, 2009. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU is part and parcel of an increased rating when such a claim is raised by a veteran or is otherwise reasonably raised by the record. During the February 2008 and August 2009 VA examinations, the Veteran raised the issue of unemployability. Specifically, the Veteran contended that he is currently unemployed and unable to continue working as a diesel mechanic due to his chronic back pain. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. However, the issue of whether the Veteran is entitled to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to August 14, 2009, the evidence demonstrates that the Veteran's degenerative disc disease of the lumbar spine with L4-L5 instrumentation has been productive of forward flexion of the thoracolumbar spine at 30 degrees or less. 2. The Veteran's degenerative disc disease of the lumbar spine with L4-L5 instrumentation is not productive of incapacitating episodes having a total duration of at least six weeks during the past 12 months, nor is it productive of unfavorable ankylosis of the entire thoracolumbar spine; and, there was no evidence of separately compensable neurological abnormalities associated with the spine (except for the already service-connected radiculopathy of his right and left lower extremities). CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the period prior to August 14, 2009, the criteria for an evaluation greater than 20 percent for degenerative disc disease of the lumbar spine with L4-L5 instrumentation and fusion have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5235-5243 (2013). 2. The criteria for an evaluation greater than 40 percent for service-connected degenerative disc disease of the lumbar spine with L4-L5 instrumentation, have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5235-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of this law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, a duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision on the claims on appeal has been accomplished. Through the January 2008 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the January 2008 letter. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the January 2008 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned notice letter. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the rating issue must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment records as well as his post-service VA medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. Significantly, neither the Veteran, nor his representative, has otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained. In addition, the Veteran was offered the opportunity to attend a hearing before a Veterans Law Judge (VLJ), which he declined. The duty to assist also includes obtaining a medical examination/opinion when such is necessary to make a decision on the claim, as defined by law. VA examinations in connection to the service connected low back disorder were performed February 2008 and August 2009. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate, as they were predicated on a review of the Veteran's medical records, an interview of the Veteran and a discussion of his medical history, and the examinations fully addressed the rating criteria that are relevant to rating the low back disability at issue. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). In this regard, the Board acknowledges that the Veteran's claims file was not requested by the VA RO for review, and it is unclear whether the files were available for review during either examination. However, the Board observes that review of the claims file is only required where necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions; necessity for pre-examination records review is to be determined according to the facts of each individual case. See VAOPGCPREC 20-95; 61 Fed. Reg. 10,064 (1996). Here, resort to the Veteran's claims file was not necessary because the Veteran provided an accurate account of his medical history, thus ensuring a fully informed examination. Also, the claims file was not necessary for the examiner to provide findings as to the current severity of the low back symptoms, which is the question at issue in this case. The examiner was not asked to resolve conflicting medical opinions or diagnoses. Therefore, review of the file was not needed, and a remand for further examination with respect to the Veteran's claim for an increased rating would only delay the Veteran's appeal and would not likely result in a different outcome. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2013). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use). See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation and Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. On September 26, 2003, revisions to the VA rating schedule established a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 68 Fed. Reg. 51454-51458 (August 27, 2003). Diagnostic Code 5243 indicates that degenerative disc disease of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher evaluation when all disabilities are combined under § 4.25. Note 6 further provides that the thoracolumbar and cervical spine segments should be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The thoracolumbar segment of the spine includes the thoracic and lumbosacral spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability evaluation is contemplated when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent disability evaluation is contemplated when there is unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. DC 5003, for degenerative arthritis provides that degenerative arthritis, established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2013); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 1. For the period prior to August 14, 2009 In the March 2004 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine with L4-L5 instrumentation and fusion, and evaluated it as noncompensably disabling, effective May 1, 2003 pursuant to Diagnostic Code 5293. In the September 2004 rating decision, the RO increased the disability rating for the service-connected low back disability to 20 percent, effective May 1, 2003. Rating decisions dated in October 2006 and July 2008 continued the 20 percent rating for the service-connected low back disability, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran contends that he is entitled to a higher rating for his low back disability for the period prior to August 14, 2009. After a careful review of the record, and resolving all doubt in his favor, the Board finds that, for the period prior to August 14, 2009, the medical evidence supports the assignment of a 40 percent disability rating, but no higher, for the low back disability. In this regard, VA treatment records from the VA Medical Center (VAMC) in Birmingham, Alabama, and dated from November 2006 to February 2007, document the Veteran's complaints of chronic low back pain. During the February 2007 VA treatment visit, the VA physician noted that the Veteran's range of motion was decreased in all directions on physical examination. The Veteran was afforded a VA examination in February 2008, at which time he provided his medical history and described increasing low back pain over the last year. The Veteran also described symptoms of decreased motion and stiffness as a result of his low back disability. According to the Veteran, the pain in his lower back was characterized by a "dull throbbing ache with abrupt onset of sharp stabbing pain with any movement." On physical examination, the Veteran was shown to have flexion to 35 degrees during active range of motion, with pain between 30 to 35 degrees. The Veteran was also shown to have flexion to 45 degrees during passive range of motion, with pain somewhere between 30 to 45 degrees. In addition, the Veteran had extension to 5 degrees, left lateral flexion to 12 degrees, right lateral flexion to 14 degrees, left lateral rotation to 17 degrees and right lateral rotation to 30 degrees - all of which were performed during active range of motion. The VA examiner further noted that the Veteran's flexion was limited to 20 to 35 degrees on repetitive movement due to pain. The Veteran did not report any incapacitating episodes of intervertebral disc syndrome, and the evidence was clear for any signs of ankylosis in the thoracolumbar spine. While the Veteran was shown to have flexion greater than 30 degrees on examination, the evidence of record reflects that he began experiencing pain at 30 degrees when performing the range of motion exercises. Additionally, his range of motion was at times reduced to a level less than 30 degrees during repetitive movement, as a result of his low back pain. Accordingly, and taking into account the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings of DeLuca, supra, the Board finds that for the period prior to August 14, 2009, and beginning on the date of claim - May 31, 2007 - the severity of the disability at issue is more appropriately reflected by a 40 percent evaluation. The benefit of the doubt is resolved in the Veteran's favor. See 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 2. For the period on and after August 14, 2009 The Veteran was afforded another VA examination in August 2009, at which time he reported gradual pain in the lower back, and described "daily, severe constant pain in his low back (that) goes down both legs with numbness and tingling in both legs. . . ." According to the Veteran, the pain had progressively worsened since its onset in service. The Veteran also reported symptoms of fatigue, decreased motion, stiffness, weakness, and spasms as a result of his low back problems, and described the pain in his lower back as a "shooting pain" that was daily, constant and severe in nature. On physical examination, the Veteran was shown to have flexion to 30 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. Although, the examiner observed objective evidence of pain following repetitive motion, she did not observe additional limitation of motion after repetitive use. The Veteran denied any spinal flare-ups but did report to experience ten to twelve incapacitating episodes during the past year that lasted two to three days in duration. It was noted that he used a brace to help him move around. Upon further inspection of the spine, the examiner described the Veteran's gait as normal and further noted that the Veteran's spine was negative for any abnormal spinal curvatures or signs of ankylosis. A more recent VA treatment report dated in March 2010 reflects the Veteran's complaints of increasing low back pain. On examination, the VA physician noted that the Veteran's back was "essentially unchanged from previous." In considering the evidence of record under the General Rating Formula for Diseases and Injuries of the Spine, the Board concludes that the Veteran is not entitled to an evaluation in excess of 40 percent for his service-connected degenerative disc disease of the lumbar spine with L4-L5 instrumentation and fusion. In this regard, neither the February 2008 VA examiner nor the August 2009 examiner observed signs of ankylosis in the thoracolumbar spine. Indeed, there is no medical evidence diagnosing the Veteran with ankylosis of the spine, and there are none of the previously mentioned symptoms indicative of unfavorable ankylosis. In fact, both examination reports reflect that the Veteran was able to perform all his range of motion exercises despite his movement being somewhat restricted and limited. As such, the medical evidence of record does not show his spine to be fixed. Even when taking into account limited movement and the Veteran's complaints of pain on motion, such complaints do not approximate ankylosis. The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint", citing Stedman's Medical Dictionary 87 (25th ed. 1990)). The Board does not doubt that the Veteran has pain; however, in light of the ranges of motion documented at the examinations, the Board finds that the Veteran has not met the criteria for an evaluation in excess of 40 percent under the revised rating criteria. Thus, the Veteran has not been shown to have met the criteria for an evaluation in excess of 40 percent for his degenerative disc disease of the lumbar spine with L4-L5 instrumentation. The Board has also considered whether the Veteran would be entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, the medical evidence of record does not show that the Veteran has had incapacitating episodes with a total duration of at least six weeks during the past 12 months. Indeed, the Veteran did not report to experience any incapacitating episodes of spine disease at any of his VA treatment visits or at the February 2008 VA examination. While the Veteran reported to experience ten to twelve incapacitating episodes during the past twelve month period at the August 2009 VA examination, the medical evidence of record does not substantiate this assertion as there are no treatment records documenting the Veteran as having had bed rest prescribed by the physician due to his spine disability. Furthermore, even if the Veteran did experience 10 to 12 incapacitating episodes within the past year, he stated that each episode lasted 2-3 days, which still would not approximate a six week period. Indeed, the medical evidence of record is negative for any evidence or documentation indicating that the Veteran has been prescribed with bed rest by any of his physicians or treatment providers. Therefore, the medical evidence does not show that the Veteran has had incapacitating episodes with a total duration of at least six weeks during the past twelve months, and a higher rating is not warranted under the criteria for intervertebral disc syndrome. The Board has also considered the provisions of 38 C.F.R. § 4.40, 4.45, 4.59, and the holdings in DeLuca. However, the Veteran is in receipt of the maximum schedular evaluation for limitation of motion of the spine. Furthermore, the August 2009 examiner commented that the Veteran's range of motion was not additionally limited following repetitive movement. Indeed, the Board finds that the effect of the pain in the Veteran's thoracolumbar spine is contemplated in the currently assigned 40 percent disability evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Therefore, the Board concludes that an evaluation in excess of 40 percent for the Veteran's low back disability is not warranted. The Board recognizes the Veteran's statements attesting to his constant pain and discomfort. Lay persons can attest to observable symptomatology. In addition, the Veteran's statements describing his symptoms are considered to be competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence, including the VA treatment records and the February 2008 and August 2009 examinations, include the information necessary to rate the Veteran's disability in accordance with the rating criteria. In addition, the VA examiner took into consideration the Veteran's reported symptomatology when conducting both examinations. Thus, when considering the overall evidence of record, including the Veteran's statements, the Veteran's disability does not warrant an disability rating in excess of 40 percent. Based on this evidentiary posture, the Board concludes that the totality of the evidence of record has not shown that the Veteran's service-connected low back disability warrants a rating in excess of 20 percent at any time during the appeal period. Thus, this claim must be denied. With respect to any neurological complications, the Veteran has already been service-connected and separately rated for radiculopathy of the lower extremities. Furthermore, the Veteran has denied experiencing any bowel or bladder symptomatology, and the medical evidence of record does not reflect any such pathology. Thus, a separate compensable rating for such symptoms is not warranted. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2013) (which stipulates that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code). The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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 Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the rating criteria used to evaluate his lumbar spine degenerative disc disease reasonably describes the Veteran's disability level and symptomatology and he has not argued to the contrary. There is no indication that the Veteran's disability picture is so exceptional or unusual to render the schedular criteria inadequate. Consequently his disability level is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate. For these reasons, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Subject to the provisions governing the award of monetary benefits, a 40 percent disability evaluation for degenerative disc disease of the lumbar spine with L4-L5 instrumentation, for the period prior to August 14, 2009, is granted. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine with L4-L5 instrumentation is denied. REMAND The Board notes that the Veteran filed an informal claim for a TDIU due to his service-connected disabilities in July 2006. In the October 2006 rating action, the RO denied the Veteran's claim for entitlement to TDIU. The Veteran did not appeal this denial. Initially, the Board notes that awards of TDIU are governed, in part, by 38 C.F.R. § 4.16(a) (2013). Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, the disability must be ratable at 60% or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40% or more, and sufficient additional disability to bring the combined rating to 70% or more. See also 38 C.F.R. §§ 3.340, 3.341 (2013). In addition to his service-connected low back disability, the Board notes that the Veteran is also currently service-connected for radiculopathy of the right and left lower extremities, both of which have been separately rated as 10 percent disabling. The current combined evaluation for the Veteran's service-connected disabilities is 50 percent. See 38 C.F.R. § 4.25 (2013). Thus, the Veteran does not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). Nonetheless, entitlement to the benefit on an extraschedular basis may be considered by the Director of the Compensation and Pension Service when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, even though percentage requirements are not met, with consideration given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). In determining whether the Veteran is entitled to a TDIU rating, neither nonservice-connected disabilities or advancing age may be considered. 38 C.F.R. § 4.19. Since the October 2006 rating decision, the Veteran's service-connected low back disability has worsened in severity, and has been re-evaluated as 40 percent disabling. The evidence of record addressing the issue of the Veteran's employability is found in the Veteran's own statements and in the February 2008 and August 2009 VA examination reports. At both VA examinations, the Veteran reported that he used to work as a diesel mechanic, but was no longer employed as he was unable to perform his occupational duties due to his chronic back pain. Specifically, at the August 2009 VA examination, the Veteran stated that he had lost his job after missing days at work as a result of his back pain. Considering the more recent medical evidence of record documenting a worsening in the Veteran's low back disability, and the Veteran's previous work history, the Board finds that the Veteran's service connected disabilities may have precluded him from securing and following a substantially gainful occupation. However, the Board cannot grant such benefits in the first instance. As the analysis and findings above reflect, the Board has no authority to assign a TDIU rating under 4.16(b) where a claimant does not meet the schedular requirements of 4.16(a), without first referring the case to the Director, Compensation and Pension Service. See Barringer v. Peake, 22 Vet. App. 242, 244 (2008) (the Board may not assign an extraschedular rating in the first instance). The code clearly provides that a claim for extraschedular consideration under 38 C.F.R. § 4.16(b) must be determined by the Director, Compensation and Pension Service. Bowling v. Principi, 15 Vet. App. 1 (2001). As such, further evidentiary development is necessary before appellate review may proceed on the Veteran's claim of entitlement to TDIU. Specifically, this matter is to be referred to the Director, Compensation and Pension Service, for extraschedular consideration. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an appropriate VCAA letter as to what is needed to substantiate a claim for entitlement to a TDIU, and undertake any development necessary before adjudication. 2. Then, the RO should submit the claim for a TDIU under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service. The RO should follow the dictates of section 4.16(b) in making this submission. 2. The RO should then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. (CONTINUED ON NEXT PAGE) The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs