Citation Nr: 1335930 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 04-44 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc disease (DDD) from July 1, 2004 to August 23, 2004, from November 1, 2004 to September 5, 2011, and from November 1, 2011 to January 16, 2012. 2. Entitlement to a disability rating in excess of 20 percent for lumbar spine DDD since January 17, 2012. 3. Entitlement to a separate disability rating for erectile dysfunction secondary to lumbar spine DDD. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to June 2004. This appeal initially came to the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, which, in pertinent part, granted service connection for lumbar spine DDD and assigned an initial 10 percent disability rating, effective from July 1, 2004. The RO in Fort Harrison, Montana certified the appeal to the Board. This claim was previously remanded by the Board in September 2006, February 2009, October 2009, December 2011, and January 2013 for additional development. The case has been returned to the Board for appellate review. In June 2005 the Veteran testified at the RO before a Veterans Law Judge who is no longer employed by the Board. He was subsequently offered and accepted another hearing, and in August 2009 testified at the RO before the undersigned. Transcripts of both hearings have been associated with the record. An August 2012 rating decision increased the disability rating for lumbar spine DDD to 20 percent, effective from January 17, 2012. Since this increase did not constitute a full grant of the benefits sought, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). During the course of this appeal, the Agency of Original Jurisdiction (AOJ) issued rating decisions granting entitlement to service connection for a lumbar laminectomy scar, lumbar radiculopathy of the left lower extremity, and lumbar radiculopathy of the right lower extremity. (See rating decisions dated in February 2005, February 2008, and June 2009, respectively). The Veteran did not appeal those decisions. Finally, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In June 2008, the Veteran filed a claim for a TDIU, alleging that his service-connected cervical and lumbar disabilities rendered him unable to secure or follow substantially gainful employment. In an October 2008 rating decision, the AOJ denied his claim for a TDIU and the Veteran did not appeal that decision. However, the increased rating claim for lumbar spine DDD remained on appeal and he has continued to allege that he is unemployable, at least in part, due to this disability. Notably, recent evidence from the Social Security Administration (SSA) indicates that he was found disabled since January 8, 2010. As such, the Board has expanded the increased rating claim to include entitlement to a TDIU. FINDINGS OF FACT 1. Prior to January 17, 2012, and excluding temporary total evaluations for periods of convalescence following surgery, the Veteran's lumbar spine DDD was manifested by chronic pain radiating into the lower extremities; at worst, forward flexion of the lumbar spine was limited to 65 degrees and combined range of motion of the thoracolumbar spine was limited to 190 degrees; there was no muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour and no incapacitating episodes. 2. Since January 17, 2012, the Veteran's lumbar spine DDD was manifested by chronic pain radiating into his lower extremities; at worst, forward flexion of the lumbar spine was limited to 45 degrees; there was no ankylosis of the thoracolumbar spine and no incapacitating episodes. 3. Since March 5, 2007, the Veteran has had loss of erectile power related to his lumbar spine disability, but no deformity of the penis has been documented. 4. The evidence is at least in relative equipoise on the question of whether the nature and severity of the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. From July 1, 2004 to August 23, 2004, November 1, 2004 to September 5, 2011, and November 1, 2011 to January 16, 2012, the criteria for an initial rating in excess of 10 percent for lumbar spine DDD are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2013). 2. Since January 17, 2012, the criteria for a rating in excess of 20 percent for lumbar spine DDD are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2013). 3. Effective March 5, 2007, the criteria for a separate noncompensable rating for erectile dysfunction secondary to the Veteran's lumbar spine DDD are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2013). 4. Effective March 5, 2007, entitlement to a special monthly compensation, at a rate provided by 38 U.S.C.A. § 1114(k) for loss of a creative organ is established. 38 U.S.C.A. §§ 1114, 1155, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350(a)(1), 4.115b, Diagnostic Code 7522 (2013). 5. Effective January 8, 2010, the criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In light of the favorable disposition of the claims of entitlement to a separate disability rating for erectile dysfunction secondary to lumbar spine DDD and entitlement to a TDIU, the Board finds that a discussion as to whether these duties are met for these claims is unnecessary. With respect to the increased rating claims, these issues arise from the Veteran's disagreement with the initial rating assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the Board finds that VA satisfied its duties to notify the Veteran with respect to the initial rating claims. Regarding the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. The Veteran's records from SSA were also obtained. The Veteran has been medically evaluated in conjunction with his claim for higher initial disability evaluations in March 2004, January 2005, March 2007, February 2010, and January 2012. In his August 2013 Written Brief Presentation, the Veteran's representative argues that the Veteran is entitled to a 20 percent rating for lumbar spine DDD from the date of service connection in July 2004. He argues that the prior VA examinations were inadequate and the Veteran should not be penalized for this. He does not, however, point out any specific deficiencies in the prior VA examinations. The examiners reviewed the Veteran's claims file, considered his current complaints, conducted an appropriate physical examination, and provided a complete rationale for all opinions expressed. The examination reports have been reviewed and found to be adequate, as together they address the Veteran's symptoms in relation to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, the Board is satisfied that there was substantial compliance with its prior remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ obtained outstanding VA outpatient records and SSA records, assisted the Veteran in obtaining private treatment records, and ensured that the relevant evidence was associated with either the Veteran's paper claims file or his electronic folder. The AOJ also scheduled the Veteran with the requested VA examinations. As noted above, the Board finds that these examinations are adequate to make a determination in the case. The Veteran was also provided an opportunity to set forth his contentions at Board hearings conducted in June 2005 and August 2009. The record reflects that at these hearings the designated Veterans Law Judge set forth the issues to be discussed, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In all, the duty to assist has also been fulfilled. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court discussed the concept of the "staging" ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's lumbar spine DDD has been evaluated under Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). See 38 C.F.R. § 4.71a. IVDS (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Id. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, 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. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note 1 to the Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician. Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. 38 C.F.R. § 4.71a. In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). During the appeal period, the Veteran underwent two surgeries for his lumbar spine - in August 2004 and September 2011. Temporary total evaluations for the period of convalescence following each surgery has been assigned pursuant to 38 C.F.R. § 4.30 (2013). Excluding these periods, the Veteran's lumbar spine DDD has been evaluated as 10 percent disabling from July 1, 2004 to August 23, 2004, November 1, 2004 to September 5, 2011, and November 1, 2011 to January 16, 2012. His lumbar spine DDD has been evaluated as 20 percent disabling since January 17, 2012. For the reasons outlined below, the Board finds that higher disability ratings are not warranted at any time during the appeal period. To warrant a higher 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, there must be evidence of forward flexion of the thoracolumbar spine to less than 60 degrees, combined range of motion less than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Prior to January 17, 2012 and excluding the periods of temporary total evaluation, these criteria were not met. During a March 2004 VA examination, the Veteran reported having moderate constant low back pain, which intermittently radiated into his left leg into his left forefoot. On physical examination, lumbar lordosis was normal and there was no palpable spasm or tenderness. Forward flexion of the thoracolumbar spine was limited to 76 degrees and the combined range of motion was limited to 242 degrees. There was no pain evident on range of motion testing. There was no additional limitation after repetitive testing. His gait was normal. A January 2005 VA examination report reflects the Veteran's complaints of similar symptoms; however, he also indicated that he had intermittent episodes of right leg weakness. On physical examination of the thoracolumbar spine, there was no tenderness to low back palpation. Forward flexion was limited to 80 degrees and the combined range of motion was limited to 198 degrees. During a March 2007 VA examination, the Veteran reported constant low back pain, rated as 4.5/10, with flare-ups precipitated by bending, twisting, walking up and down stairs, and lifting greater than 75 pounds. He also described having a flare-up of pain each morning on arising for about 20 to 30 minutes until his back loosened up. On physical examination of the thoracolumbar spine, there was normal spinal contour and no evidence of guarding. Forward flexion was limited to 80 degrees with some pain when asked; combined range of motion was limited to 235 degrees with no pain on extension, left lateral flexion and right lateral rotation. The Veteran reported some pain with right lateral flexion and muscle spasms with left lateral rotation. His gait was even and posture erect. The examiner indicated that range of motion was partially limited by pain, but there was no evidence of fatigue, spasms, weakness, or lack of endurance following repetitive use. There was also no additional limitation in range of spine function after repetitive use. The examiner indicated that there was no clinical or objective evidence of additional limitation due to claimed flare-ups beyond the measured and reported ranges. In August 2008, a VA examination was conducted in connection with the Veteran's claim of entitlement to a TDIU. He complained of low back pain radiating down both legs. He reported that anything seemed to aggravate his condition - any type of lifting, bending, or stooping. He said he was able to walk approximately half a mile but then had a lot of pain. He said he could not sit for more than 20 minutes. On physical examination of the thoracolumbar spine, he had full forward flexion to 90 degrees; combined range of motion was limited to 190 degrees. Range of motion was partially limited by pain after three repetitive movements; however, there was no objective evidence of fatigue, spasms, weakness, or lack of endurance. There was no additional limitation of spine function after repetitive testing. There was minimal localized tenderness on palpation. Spinal contour was normal and there was no guarding. His gait was even and his posture was erect. During a February 2010 VA examination, the Veteran reported constant low back pain rated at least 4/10 and at its worst, 6/10. He said he had generally had a flare-up of pain and stiffness in the morning with some resolution after showering and taking pain medication. On physical examination of the thoracolumbar spine, there was no evidence of spasm or guarding. Spinal contour was preserved and his gait was normal. Forward flexion was limited to 65 degrees with complaints of pain. Combined range of motion was limited to 195 degrees with complaints of pain with extension and bilateral lateral flexion. After three repetitions, range of motion was unchanged. The examiner indicated that there was no objective evidence of any additional function loss of range of motion due to pain, etc., beyond the measured and reported ranges. VA treatment records prior to January 17, 2012 reflect ongoing treatment of low back pain and radiculopathy, which consisted of periodic epidural steroid injections and pain medication. In September 2004, he underwent a decompressive laminectomy and had some relief of his symptoms; however, his lower left leg pain persisted. In January 2006, he indicated that he had a regular exercise program at his gym, which including biking and lifting weights. He was instructed to avoid the gym in March 2006 after a flare-up of symptoms. In May 2006, it was noted that he had no pain at rest, but got out of his chair slowly. In September 2006, it was noted that an epidural injection had helped relieve his right leg symptoms, but not his left, and he had returned to the gym. In March 2007, he reported that he missed two days of work because of back pain. A May 2007 physical therapy record notes a major loss of lumbar extension. In November 2007, he reported an increase in symptoms. In the morning, he said he had difficulty straightening his back. In April 2008, he was noted to have a stiff, guarded, and slow gait. A private medical record reflects he underwent another decompressive laminectomy in September 2011. Based on the foregoing, the Board finds that a 20 percent rating for lumbar spine DDD is not warranted prior to January 17, 2012. The preponderance of the evidence during this time period does not show that the Veteran had muscle spasm or guarding of the thoracolumbar spine severe enough to result in an abnormal gait or abnormal spinal contour. Although the above-cited April 2008 VA outpatient treatment record describes the Veteran's gait as stiff, guarded, and slow, it was not characterized as abnormal at that time. Moreover, the remainder of the pertinent evidence of record, to include the 2007 and 2008 VA examination reports, demonstrate no guarding whatsoever of the thoracolumbar spine and describe the Veteran's gait as normal. Regarding range of motion, at worst, forward flexion was limited to 65 degrees in February 2010 and combined range of motion was limited to 190 degrees in August 2008. The Board acknowledges that the Veteran had pain during range of motion testing and that the examiners did not specify exactly where pain began and ended. However, the examiners indicated that even after repetitive testing there was no additional loss of spine function and no additional loss of range of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based on loss of motion). Therefore, the evidence does not show that the Veteran experienced pain of the lumbar spine that caused additional functional loss beyond that contemplated by a 10 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). As such, an evaluation in excess of 10 percent is not warranted under the General Rating Formula for Injuries and Diseases of the Spine prior to January 17, 2012. Since January 17, 2012, the Veteran's lumbar spine DDD has been evaluated as 20 percent disabling. To warrant a higher 40 percent rating, the evidence must show forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For the reasons explained below, the Board finds that these criteria are not met and a higher rating is not warranted. A January 17, 2012 VA examination report reflects the Veteran's complaints of constant low back pain, worse in the morning and after sitting for 25 minutes or longer. He said he had brief flare-ups, which were triggered by twisting the torso and ceased when he stopped the twisting movement. He reported that he was able to perform upper body workouts and cycle 20 minutes a day, five days a week. It was noted that he went horseback riding in November 2011. On physical examination of the Veteran's thoracolumbar spine, there was localized tenderness or pain to palpation. Guarding and/or muscle spasm was present, but did not result in abnormal gait or spinal contour. Forward flexion was limited to 55 degrees with pain beginning at 45 degrees. After repetitive testing, forward flexion was limited to 45 degrees. Extension, bilateral lateral flexion, and bilateral lateral rotation was limited to 10 degrees with pain beginning at 5 degrees in each direction; after repetitive testing, range of motion in each direction remained unchanged. The examiner indicated that the Veteran had additional functional limitation/loss after repetitive testing, which included less movement than normal. The examiner also noted that the Veteran had had a lumbar laminectomy in September 2011. VA outpatient treatment records from January 2012 to April 2013 reflect that the Veteran's low back DDD was treated with epidural injections and pain medication. Based on the foregoing, the Board finds that a 40 percent rating for lumbar spine DDD is not warranted since January 17, 2012. The evidence does not reflect that the Veteran has had ankylosis of the thoracolumbar spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28th Ed. 1994) at 86). Although the mobility of his spine was limited, as reflected by the range of motion testing, it was not immobile. Hence, the Board does not find evidence of ankylosis. Furthermore, at worst, forward flexion was limited to 45 degrees after repetitive testing. Initially forward flexion was limited to 55 degrees with pain beginning at 45 degrees. Hence, even when painful motion, repetitive use, and flare-ups are considered, the evidence does not show that the Veteran experienced functional limitation equivalent to forward flexion limited to 30 degrees or less. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. As such, an evaluation in excess of 20 percent is not warranted under the General Rating Formula for Injuries and Diseases of the Spine since January 17, 2012. As noted above, the Veteran's lumbar spine DDD may also be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Here, however, there is no evidence of incapacitating episodes. The Veteran denied having incapacitating episodes during the March 2007, February 2010, and January 2012 VA examinations. Other than the periods of convalescence following surgery, for which temporary total evaluations have been awarded, there is no evidence of incapacitating episodes requiring bedrest as prescribed by a physician. Therefore, the Formula for Rating IVDS Based on Incapacitating Episodes does not entitle the Veteran to any higher ratings for his lumbar spine DDD. In addition, the rating criteria provide that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. As noted above, separate evaluations have been assigned for radiculopathy of the right and left lower extremities. The Veteran has denied any related bladder or bowel impairment. The only other possibly associated neurological abnormality noted in the record is erectile dysfunction. During the March 2007 VA examination, the Veteran reported having erectile dysfunction 50 percent of the time. He was not sure if the condition was due to back pain. The examiner opined that the intermittent erectile dysfunction was not likely secondary to the low back condition, but more likely related to other causes. The examiner noted a history of vasectomy. The February 2010 VA examiner noted the Veteran's subjective complaints of erectile dysfunction secondary to low back pain. In an addendum report, the examiner noted that the etiology of erectile dysfunction was unclear and that it can derive from a multiple factors. Based on a review of the medical literature and based on clinical experience, the examiner noted three possible factors: primary organic pathology interrupting normal nervous system function; side effects of medication prescribed for the condition; and psychological factors. The examiner indicated that she could neither prove nor disprove that the Veteran's erectile dysfunction was due to low back pain. The Board notes that the Veteran regularly takes Oxycodone and other pain medications to treat his service-connected orthopedic disabilities, including his lumbar spine disability. MRIs of the lumbar spine have shown evidence of nerve root compression. Although a medical provider has not provided a definite link between these factors and the Veteran's erectile dysfunction, the Board finds the February 2010 VA examiner's opinion probative and highly suggestive of a link. At the very least, the Board finds that the evidence is in relative equipoise as to whether the Veteran's erectile dysfunction is associated with his lumbar spine DDD. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that a separate disability rating is warranted for erectile dysfunction. Erectile dysfunction is rated by analogy to "penis, deformity, with loss of erectile power" under 38 C.F.R. § 4.115b, Diagnostic Code 7522. See 38 C.F.R. § 4.20. That code provides for a 20 percent rating for deformity of the penis with loss of erectile power. In this case, there is no evidence of a deformity of the penis, and the Veteran does not contend otherwise. Accordingly, the criteria for a compensable evaluation under Diagnostic Code 7522 for the Veteran's erectile dysfunction are not met. However, special monthly compensation for loss of use of a creative organ is warranted at the rate provided by 38 U.S.C.A. § 1114(k). See 38 C.F.R. §§ 3.350(a), 4.115b, Diagnostic Code 7522, Footnote 1. The effective date for the award of these benefits is the date erectile dysfunction is first demonstrated in the record, or March 5, 2007. See 38 C.F.R. § 3.400. In reaching this decision, the Board has considered the Veteran's lay statements. The Veteran is competent to report his observations with regard to the severity of his low back symptoms, including reports of pain, stiffness, weakness, and radiculopathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also finds his statements to be credible and consistent with the evaluations assigned. The Board has also considered the application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's disability and symptomatology. He has complained primarily of pain and limitation of motion. The General Rating Formula for Disease and Injuries of the Spine specifically contemplates limitation of motion of the thoracolumbar spine with or without symptoms of pain. Furthermore, the rating criteria provide for higher ratings for more severe impairment of the spine. To the extent he has complained of radicular pain and weakness in his lower extremities, the Board notes that separate evaluations for these disabilities have been assigned and the Veteran has not appealed these decisions. Based on the foregoing, the Board finds that the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. In this case, the Veteran has been granted service connection for a cervical spine disability (30 percent), headaches associated with cervical spine disability (30 percent), a lumbar spine disability (10 percent prior to January 17, 2012, and 20 percent thereafter), gastroesophageal reflux disease (10 percent), a cervical laminectomy scar (10 percent), sensory changes of the left upper extremity (10 percent), radiculopathy of the left lower extremity (10 percent), radiculopathy of the right lower extremity (10 percent); left wrist sprain (0 percent), a right knee disability (0 percent), chronic rhinitis (0 percent), a lumbar laminectomy scar (0 percent), and a left shoulder disability (0 percent). The combined rating for all of these service-connected disabilities has been 80 percent since May 2008, excluding periods of convalescence following spine and shoulder surgeries. Because the Veteran's service-connected orthopedic disabilities combine to at least 40 percent and he has an overall combined rating of over 70 percent, the minimum percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) are met. The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. Considering the pertinent evidence in light of the above, and affording the Veteran the benefit of the doubt, the Board finds that a TDIU is warranted. On his June 2008 TDIU claim (VA Form 21-8940), the Veteran alleged that his cervical spine and lumbar spine disabilities rendered him unable to secure or follow substantially gainful employment. He indicated he last worked full-time in September 2007 and had worked part-time since then. The record reflects that he worked in a warehouse and as a loader/driver. The AOJ contacted each of his listed employers, who either responded that the Veteran had left for his own reasons (to take another job, etc.) or was terminated. None of his former employers indicated that any concessions were made for the Veteran's disabilities or that his disabilities played a part in him quitting or being terminated. An August 2008 VA examination was conducted in connection with his TDIU claim. The Veteran reported that he was employed half time at a shipping company. He said he occasionally missed work because of his headaches and that his employer had adapted his work station so that he was able to stand 90 percent of the time he was working. The examiner conducted a VA examination and opined that his service-connected disabilities did not preclude him from engaging in sedentary or partial sedentary work. The examiner indicated that he was able to perform simple repetitive work activities of the type he was currently performing part-time. In an October 2008 rating decision, the AOJ denied entitlement to a TDIU. As noted above, the Veteran did not appeal that decision. Since then, additional evidence has been received. In August 2011, the SSA determined that the Veteran was disabled from January 8, 2010 with a primary diagnosis of disorders of the back (discogenic and degenerative) and a secondary diagnosis of osteoarthrosis and allied disorders. The Veteran was determined to have the following severe impairments: DDD, lumbar spinal stenosis, herniated disc and radiculopathies, post laminectomy syndrome of the cervical spine with cervicalgia and associated headaches and sensory change to the left upper extremity, post laminectomy syndrome of the lumbar spine with gastroesophageal reflux disease and left shoulder impingement. The Board notes that each of these impairments is service-connected. While the Veteran could perform sedentary work as defined by SSA regulation, it was noted that he had to alternate between sitting, walking, and standing throughout the day. He could walk no more than three blocks at a time, stand no more than two hours at a time, and sit no more than 30 minutes at a time. The combination of his symptoms caused severe impairments requiring regularly scheduled breaks and at least two days of missed work per month. Based on the testimony of a vocational expert, SSA determined that considering the Veteran's age, education, work experience, and residual functional capacity, there were no jobs in the national economy that the Veteran could perform. Although SSA's determination is not binding on VA, the records are probative evidence supporting entitlement to a TDIU. This is especially true in a case such as this one, where SSA determined an individual disabled due to service-connected disabilities. At the very least, the Board finds that the evidence is in relative equipoise as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Regarding the date of entitlement to a TDIU, in his August 2013 Written Brief Presentation, the Veteran's representative argues that the Veteran was only marginally employed prior to January 2010. Although there is some evidence that the Veteran worked some part-time jobs prior to January 2010, on his application for SSA benefits he indicated that he had last worked for Montana Silversmith as a warehouse supervisor and that he worked eight hours a day, five days a week. He indicated that he stopped working on January 8, 2010 because of his physical conditions. The application notes that the Veteran's alleged onset date of disability was January 8, 2010, and that this was the first month his wages were below substantially gainful activity. Based on the Veteran's own statements and the determinations made by SSA, the Board finds that he is entitled to a TDIU from January 8, 2010, but no earlier. Given the evidence noted above, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is established from January 8, 2010. ORDER Prior to January 17, 2012, excluding periods of convalesce following surgery, an initial disability rating in excess of 10 percent for lumbar spine DDD is denied. Since January 17, 2012, a disability rating in excess of 20 percent for lumbar spine DDD is denied. Effective March 5, 2007, a separate noncompensable disability rating for erectile dysfunction associated with lumbar spine DDD is granted, subject to the law and regulations governing the award of monetary benefits. Effective March 5, 2007, special monthly compensation for loss of use of a creative organ due to erectile dysfunction associated with lumbar spine DDD is granted, subject to the law and regulations governing the award of monetary benefits. Effective January 8, 2010, entitlement to a TDIU is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ Sonnet Gorham Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs