Citation Nr: 1337117 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 06-09 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for lumbar spondylosis. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities, prior to September 16, 2010. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from August 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Denver, Colorado in September 2008. A written transcript of this hearing has been prepared and incorporated into the evidence of record. In February 2009, the Board granted service connection for coronary artery disease and hypertension; denied an initial evaluation in excess of 20 percent for diabetes mellitus; and remanded the issue of entitlement to an initial evaluation in excess of 10 percent for lumbar spondylosis. The Board then remanded the claim for an increased initial evaluation for lumbar spondylosis again in November 2010, September 2011, and most recently, in August 2012. The Board notes that in a February 2008 statement of the case, the RO increased the evaluation for lumbar spondylosis from 0 to 10 percent, effective March 1, 2004. Then, by a March 2010 rating decision, the RO increased the evaluation for lumbar spondylosis from 10 to 20 percent, effective as of March 1, 2004. Since this was not a complete grant of the benefits sought on appeal, the claim remains in appellate status. The Veteran additionally alleges that he cannot work as a result of his low back disability. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that once a claimant: (1) submits evidence of medical disability, (2) makes a claim for the highest possible rating for the disability, and (3) submits evidence of unemployability due to the disability, an informal claim is raised under 38 C.F.R. § 3.155(a) for a total disability rating based on individual unemployability (TDIU). And as the U. S. Court of Appeals for Veterans Claims (Court/CAVC) more recently explained in Rice v. Shinseki, 22 Vet. App. 447 (2009), if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. VA's Office of General Counsel also has indicated that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability that formed the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). FINDINGS OF FACT 1. The Veteran's low back disability has been manifested by forward flexion limited to (at worst) 50 degrees (with pain on motion); it has not been manifested by ankylosis, forward flexion limited to 30 degrees or less or a distinct period of time with compensable objective neurological symptoms. 2. The Veteran's service-connected low back disability prevented him from obtaining or maintaining a substantially gainful occupation prior to September 16, 2010. 3. As of September 16, 2010, the Veteran has been in receipt of a 100 percent schedular evaluation and special monthly compensation under 38 U.S.C.A. 1114(s), rendering a claim for TDIU benefits moot as of this time. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability evaluation in excess of 20 percent for lumbar spondylosis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2013). 2. The criteria for a total disability evaluation based on individual unemployability due to service-connected disabilities, prior to September 16, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's lumbar spondylosis claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that 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), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for these claims. As for the issue of entitlement to TDIU benefits, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in January 2005, June 2007, October 2007, September 2009 and February 2012, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records have been obtained as well, along with records from the Social Security Administration (SSA). Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Additionally, the Board finds there has been substantial compliance with its August 2012 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) obtained the Veteran's SSA records, as well as an addendum to the February 2012 VA examination. . The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). As already noted, in September 2008, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned noted the issues on appeal and solicited information regarding the nature of his symptomatology as well as the functional impact the claimed disability had on his daily life and employment. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that has not since been obtained. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating for a Lumbar Spine Disability Relevant Laws and Regulations 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 (2011). 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 (2011). 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). Facts and Analysis The Veteran filed a claim of entitlement to service connection for a lumbar spine disability in March 2004. Service connection was subsequently granted in a March 2005 rating decision. A noncompensable (0 percent) disability evaluation was assigned, effective as of March 1, 2004. A timely notice of disagreement was received from the Veteran in July 2005, but the 0 percent evaluation was continued in a February 2006 statement of the case. The Veteran appealed this decision to the Board in March 2006. An August 2004 record reflects that the Veteran denied back pain at this time, but a May 2004 statement from a private physician with the initials M.S. notes a long history of spondyloarthropathy. The Veteran was noted to be doing reasonably well. The Veteran was afforded a VA examination of the spine in January 2005. The Veteran reported daily discomfort if he stood still for greater than one to two hours. He denied any radicular symptoms into the lower extremities or bowel or bladder incontinence. The Veteran reported that as long as he was sitting or able to ambulate he had no discomfort at all. There were also no specific flares and the Veteran did not require any brace or device to assist with ambulation. Examination revealed a loss of lordosis in the standing position. Range of motion was flexion to 90 degrees without pain and extension from 0 to 30 degrees that was uncomfortable bilaterally in the upper lumbar region. Bilateral lateral flexion was to 30 degrees and bilateral rotation was to 30 degrees. Range of motion did not change upon repetition, aside from extension being reduced to 20 degrees. An X-ray revealed spondylosis of the lumbar spine. The examiner concluded that presently, the Veteran's only symptoms were low back discomfort on standing still with no discomfort with mobility, sitting or flares to speak of. A hand-written note also reflects that X-rays revealed degenerative joint disease. A subsequent private treatment note dated March 2005 also reflected lower extremity reflexes to be within normal limits, bilaterally. The Veteran's ability to discriminate sharp versus dull stimuli was also deemed "satisfactory." A July 2006 private treatment record reflects lumbar back pain with possible spondylolisthesis of L4-5 and degenerative disc disease. Testing of the extremities revealed normal reflexes, sensation and motor strength. A lumbosacral spine series performed at this time revealed degenerative disc changes of the lower lumbar spine. An August 2006 note reflects a history of back pain. It was noted that magnetic resonance image (MRI) findings were very suspicious for discitis. A biopsy was obtained at this time. A July 2006 MRI report of record reflects that biochemical evaluation or discitis was recommended. The record also contains an MRI report dated September 2006. This revealed an interval decrease in marrow edema at L1-2 (which was deemed to be consistent with the Veteran's response to therapy) and extensive facet arthropathy at the L4-5 and L5-S1 levels. According to a November 2006 neurosurgical follow-up note from the Colorado Brain and Spine Institute, the Veteran was recovering from a presumed L1-2 discitis. The Veteran reported that he had some mild intermittent low back pain, but overall, his symptoms had resolved. He denied any lower extremity radicular pain or associated paresthesias. Examination revealed a full range of motion in the lumbar spine with full muscle strength in the lower extremities, bilaterally. Sensation was also intact and reflexes were brisk and symmetric. The Veteran was afforded an additional VA examination in June 2007. The Veteran described daily pain and stiffness in the L1-3 region. The pain did not radiate. The Veteran reported that he was unable to function in his usual occupation, as standing all day was not tolerable. The Veteran endorsed an ability to walk, sit and stand for 20 minutes each. The Veteran did not use any assistive devices. The Veteran did endorse flare-ups once per month with incapacitating episodes 6 times per year. He also reported urinary retention, hesitancy, frequency and dribbling, but denied urinary incontinence. It was noted that the Veteran had benign prostatic hypertrophy in 1995, and his problems with urinary retention had since resolved with Flomax. Range of motion testing revealed forward flexion to 60 degrees, extension to 10 degrees, bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees. Repetitive motion did not result in a reduction in motion and there was no pain to palpation of the affected area. A neurological evaluation also revealed normal sensation, reflexes and muscle strength of the lower extremities. A diagnosis of spondylosis of the lumbar spine was assigned. The Veteran was also afforded a VA examination in October 2007 for the purpose of determining his employability. It was noted that the Veteran last worked in May 2003 and that he left his job due to peptic ulcer disease stemming from stress and low back pain. The Veteran reported daily pain with no sciatica or radicular symptoms. He also endorsed flare-ups once a week that lasted from one to three hours. He noted that these resolved with heat and pain medication. The Veteran also reported that he wore a low back support. He indicated that he could walk one quarter of a mile, run 50 yards, lift 50 pounds and sit for 2 hours. There had been no instances of physician-prescribed bed rest in the past year. Examination revealed the lumbar spine to be nontender to palpation. Spinal contour was normal and there was no palpable spasm. Range of motion testing revealed forward flexion to 75 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees and bilateral rotation to 25 degrees. The Veteran could perform these ranges of motion repeatedly, and the examiner specifically noted that, per DeLuca, there was no increased pain, fatigue, weakness or incoordination or impaired endurance on repeated testing. The examiner diagnosed the Veteran with lumbar spondylosis with degenerative joint disease with flare-ups of pain forcing bed rest once a week lasting for 1 to 3 hours. The record also contains a statement from a private physician with the initials C.P. dated January 2008. According to Dr. P, the Veteran was suffering from chronic back pain. It was noted that his daily activities were significantly affected by his back pain. There was also a limited range of motion in the lumbar region with pain being the endpoint to his lack of range of motion. Specifics regarding the degree of limited motion were not provided. Dr. P provided an additional statement in September 2008. It was noted that the Veteran had continued to decrease in functionality over the previous year. He also had pain with his daily activities because he did not like to take narcotics. Dr. P requested that the Veteran be reexamined for this disability due to his progressive deterioration. The Veteran was afforded another VA examination of his spine in September 2009. It was noted that the Veteran was still not working and that he had received Social Security benefits since 2007. The Veteran described back pain that he rated as a 7 or 8 out of ten, that was dropped to a 3 out of 10 with medication. He also described stiffness and fatigue and indicated that his pain was constant. The Veteran reported that, beginning in January 2009, he began experiencing increased pain with aching in the lateral thigh and posterior calf pain on the left side along with some numbness in the left great toe. He indicated that he could only sit for 20 to 30 minutes before he had to get up and move around because of low back pain. He also indicated that he could only stand for 20 to 30 minutes due to back pain. He stated that he quit traveling because he could not tolerate being in the same position for long in a vehicle. The Veteran reported usually using a brace whenever he was awake, but he did not use a cane or walker. He endorsed flare-ups approximately twice a month lasting 1 to 2 days, but he would sometimes go 1 to 2 months without a flare-up. The examiner noted that while the Veteran had not had any incapacitating episodes in the last year he did lie down on his own at least 5 or 6 times per day for at least 15 minutes. Examination revealed forward flexion to 100 degrees (with complaints of pain at 20 degrees), extension to 30 degrees (with pain at 10 degrees) left lateral flexion to 30 degrees (with pain at 20 degrees), right lateral flexion (with pain at 15 degrees) and bilateral lateral rotation to 20 degrees (with pain at 10 degrees). There was no change in active or passive range of motion following repetitive testing and no additional loss of range of motion was recommended due to painful motion, weakness, impaired endurance, incoordination or instability. There was a decrease in the normal lumbar lordosis. Deep tendon reflexes were normal and symmetric, bilaterally, and straight leg raise was negative for radicular pain. Strength was deemed to be full as well. Sensation was subjectively mildly decreased to pinprick in the right and normal on the left. The examiner noted that the Veteran's limitation of motion was not comparable to ankylosis. X-rays revealed the Veteran's lumbar spine disability to be worse, with degenerative changes as well as antero-listhesis of L4 relative to L5, which changed between flexion and extension. The examiner diagnosed the Veteran with lumbosacral degenerative disc disease at L1-2, L4-5 and L5-S1. The Veteran was also suffering from multi-level lumbar degenerative joint disease and L4-5 anterolisthesis without evidence of spondylosis. There was no evidence of an acute or chronic lumbosacral radiculopathy on the left or the right. The examiner noted that while there was evidence of ankylosing spondylitis of record, there was no evidence of this condition on spinal films. The examiner concluded that the Veteran's functional loss due to pain specifically related to the lumbosacral condition diagnosed in service could not be determined without resorting to mere speculation. This was because the presence of multiple confounding variables, including more severe degenerative changes at L4-S1 than at L1-2 and the fact that the Veteran presently pointed to the L4-S1 region as the location of his pain. Furthermore, the diagnosis of ankylosing spondylitis that was made approximately 15 years after service was not classic, as the Veteran had not developed the typical stooped, "bamboo" spine. The examiner did note that the Veteran described flare-ups involving his low back. The examiner assigned an additional loss of 40 degrees of flexion and 10 degrees of extension to try and express this additional functional loss. However, the examiner could not determine whether this additional loss of function was secondary to the L1-2 degenerative disc changes, the L4-S1 degenerative changes or the ankylosing spondylitis without resorting to speculation. Finally, the examiner concluded that while the Veteran did have a number of other medical issues that would restrict his employment, his low back condition with its multiple etiologies would alone be sufficient to keep him from full-time competitive employment. This was due to pain and the frequent need to lie down. The record contains another statement from Dr. P dated April 2010. It was noted that the Veteran's current symptoms included lumbar back pain involving the sacroiliac joints with morning stiffness and radicular pain that radiated into the left buttock and often to the left foot in the L4-5 radicular pathway. This pain was noted to be persistent at a baseline level of 3 to 4 out of 10 in severity. The Veteran reported an exacerbation in his pain to an 8 or 9 out of 10 at least four times per month. The Veteran indicated that during these exacerbations he would use a back brace for support. Dr. P also prepared a statement in May 2012. She noted that she was treating the Veteran for a number of medical conditions, including ankylosing spondylitis. The record also contains a report from the Colorado Comprehensive Spine Institute dated October 2010. The Veteran was noted to have an 8 year history of severe lumbar back pain with a one year history of increasing bilateral leg pain. July 2010 radiographs were reviewed, revealing multiple degenerative changes throughout the lumbar spine. CT imaging was consistent with these findings, confirming a severe loss of disc height and severe sclerosis. A June 2010 MRI confirmed these findings as well. A neurological evaluation was also performed, revealing a normal motor examination with decreased sensation of the right foot. This was felt to be consistent with an L5 radiculopathy. There were also subtle distal foot sensory changes that were felt to be consistent with diabetic neuropathy. What was described as a minimally invasive instrumented posterior spinal fusion with an interbody spacer was performed without complication in August 2010, resulting in the complete resolution of the Veteran's reported leg pain. The Veteran underwent an additional VA examination of the spine in February 2012. It was noted that approximately three to four years earlier, the Veteran developed pain radiating into both lower extremities from his low back. He also reported numbness in the toes of both feet without associated lower limb paresthesias or weakness. It was noted that in August 2010, the Veteran underwent spine surgery, and as a result, his bilateral toe numbness and lower limb radicular pain completely resolved. However, he continued to experience constant low back pain. The Veteran noted that his back pain was "50% better" following his surgery. He also experienced persistent low back stiffness and lumbar muscular spasms. The Veteran described flare-ups occurring on average twice per week and lasting for a day, requiring him to take a muscle relaxant for back spasms. A hot shower or whirlpool bath also helped to relieve his pain. He would also generally lie down or recline in a chair. However, he had not received any formal written orders for bed rest from any treating physician in the past 12 months. Examination revealed forward flexion to 50 degrees (with pain beginning at 20 degrees), extension to 15 degrees (with pain beginning at 10 degrees), bilateral lateral flexion to 15 degrees (with pain beginning at 10 degrees), and bilateral lateral rotation to 20 degrees (with pain beginning at 20 degrees). The Veteran was able to perform repetitive motion testing with no additional limitation in motion following repetition. Functional loss was due to less movement than normal, pain on movement and interference with sitting, standing or weight-bearing. The Veteran's spine was tender to palpation, but there was no guarding or muscle spasm. Neurological testing revealed normal muscle strength of the lower extremities with no muscle atrophy. Reflexes and sensation were also normal. The Veteran also denied any radicular pain. The examiner noted that while the Veteran did suffer from intervertebral disc syndrome, he had not had any incapacitating episodes over the previous 12 months. The Veteran did not require any assistive devices for ambulation. While there was scarring, it was not painful, unstable or in excess of 39 square centimeters. He was able to walk on heels and toes without difficulty. Arthritis was confirmed by X-ray. No formal opinion was offered regarding employability. An addendum to the above examination was prepared in February 2013. The examiner reviewed the Veteran's Social Security Administration (SSA) records. The examiner opined that her previous opinion had not changed in light of the newly associated evidence of record. The examiner explained that the new evidence did not support the Veteran's claim that he had incapacitating episodes or any period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. The examiner explained that a letter provided by the Veteran's primary care provider revealed that she had been his primary care provider since 2006. A review of the evidence of record revealed no documentation of physician ordered bed rest. Newly added SSA records, which did describe the Veteran's back pain, also failed to reveal any physician prescribed bed rest. However, the primary diagnosis was noted to be ischemic heart disease while the secondary diagnosis was major depressive disorder. A disability vocational specialist noted in June 2007 that the Veteran's functional capability correlated best with sedentary work. The examiner noted that the Veteran's hobbies involved sitting while watching television, reading or performing computer tasks, and that there was "certainly no information" to support the Veteran's claim that he had experienced incapacitating episodes of low back symptoms requiring physician-ordered bed rest or that he was incapable of employment due to any such incapacitating episodes. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 20 percent at any time during the pendency of this claim. The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5242. This code is rated under the General Rating Formula for Diseases and Injuries of the Spine. Under this formula, 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 20 percent rating is assigned 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. 38 C.F.R. 4.71a. A higher rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. Id. The record reflects that the Veteran was capable of forward flexion to 90 degrees without pain upon examination in January 2005. A November 2006 private treatment record reflects a full range of motion, and upon examination in June 2007, the Veteran was capable of forward flexion to 60 degrees. Forward flexion was found to be to 75 degrees in October 2007, to 100 degrees in September 2009 and to 50 degrees upon examination in February 2012. As such, the evidence of record demonstrates that the Veteran has been capable of forward flexion of the thoracolumbar spine in excess of 30 degrees throughout the pendency of this claim. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. According to the June 2005 VA examination, the Veteran was capable of flexion to 90 degrees without pain. It was also noted that the Veteran had no flares to speak of at this time. However, during his June 2007 VA examination he reported flare-ups approximately once per month. The degree of additional functional impairment resulting from these flare-ups was not discussed. It was noted, however, that the Veteran was capable of repetitive motion without a further reduction in degree of motion. An October 2007 VA examination report specifically reflects that the Veteran could perform repetitive motion and that there was no increased pain, fatigue, weakness, incoordination or impaired endurance upon repetition. The Veteran endorsed flare-ups once a week lasting for one to three hours. In September 2009, it was noted that while the Veteran had forward flexion to 100 degrees, he began to experience pain at just 20 degrees. However, there was no change in total degree of motion after repetitive testing. The examiner also noted flare-ups, and estimated an additional loss of 40 degrees of flexion during these flare-ups. The Veteran also reported exacerbations of pain requiring a back brace in April 2010, and upon examination in February 2012, he described flare-ups occurring on average twice per week requiring him to take medication or lie down. Also, the Veteran could forward flex to 50 degrees at this time, but pain began at 20 degrees. Repetitive motion testing did not result in additional loss of degree of motion, and functional loss was deemed to be less movement than normal, pain on movement and interference with sitting, standing or weight-bearing. Considering the above evidence, the Board finds that a higher rating is not warranted based on functional loss. While the Veteran experiences pain upon forward flexion as early as 20 degrees, he is still capable of flexing past 30 degrees - the degree of limitation required for a higher disability evaluation. The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is in fact impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. In the present case, despite his pain, the Veteran has not demonstrated functional loss of such severity to suggest that a rating in excess of 20 percent is warranted. Furthermore, the September 2009 examiner estimated an additional 40 degree loss of motion during flare-ups. As the Veteran was capable of 100 degrees of flexion, this would suggest he was limited to 60 degrees of flexion during flare-ups. As such, he would still not exhibit functional loss of sufficient severity to warrant the next-higher rating of 40 percent during flare-ups. In addition, the fact that the Veteran has maintained motion in the spine reflects that he has not suffered from ankylosis during the pendency of this claim. A higher rating of 40 percent is available when there is evidence of favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a. For VA compensation purposes, favorable ankylosis is a condition in which a spinal segment is fixated in the neutral position (0 degrees). See id at Note (5). The Board recognizes that the record reflects the diagnosis of "ankylosing spondylitis." However, the evidence reflects that the Veteran's disability is not so severe as to have resulted in fixation of an entire spinal segment at 0 degrees. Furthermore, the September 2009 examiner explained that despite this diagnosis, the Veteran did not exhibit the classic "bamboo" spine associated with such a diagnosis. As such, a higher evaluation is not warranted for ankylosis of the spine. As intervertebral disc syndrome has been diagnosed, the Board has also considered whether a higher rating may be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under this Formula, a higher rating of 40 percent requires evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 38 C.F.R. § 4.71a. For VA purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1). However, the record consistently reflects that the Veteran has not been prescribed bed rest by a physician. In an April 2010 statement, the Veteran indicated that he spoke with his physician, who found it "silly" that his claim was denied for lack of evidence of physician prescribed bed rest. Rather, the Veteran would lay down when his back hurt or "suffer the consequences . . . . The Veteran has also reported to the VA examiners of record that he suffers from incapacitating episodes. The Board is not disputing the Veteran's assertion that he suffers a lot of pain and that he lies down in an attempt to alleviate this pain. Nonetheless, for rating purposes, an incapacitating episode "requires bed rest prescribed by a physician." Id. As there is no evidence of physician prescribed bed rest, the Veteran's reports of laying down at times due to pain are not sufficient to demonstrate entitlement to a higher evaluation. Note (1) to 38 C.F.R. § 4.71a instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. However, a review of the record fails to reflect that the Veteran has been found to suffer from any objective neurologic abnormalities associated with his service-connected lumbar spine disability during the pendency of this claim. The Veteran was noted to have subjective decreased sensation upon examination in September 2009. However, examination revealed no evidence of acute or chronic lumbosacral radiculopathy in either lower extremity. Also, while the Veteran reported radiating pain and numbness in 2010, the objective evidence of record does not confirm a distinct period of neurologic manifestations and symptoms to warrant a separate disability evaluation. While an October 2010 record does reflect subjective complaints of leg pain for the past year and an objective finding of some numbness to the foot, it was noted that the Veteran's complaints had already resolved upon treatment in August 2010. A neurological examination performed in February 2012 was deemed to be normal as well. Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the present case, there is insufficient evidence of a distinct period of time manifested by a compensable degree of objective neurological symptomatology. As such, a separate disability evaluation for neurological manifestations of the lumbar spine is not warranted. The Board recognizes that the Veteran believes he is entitled to a disability evaluation in excess of 20 percent for his service-connected low back disability. In September 2008, the Veteran testified that while he could move his spine, he was in severe pain after doing so. He has also provided numerous statements about his functional limitations and having to lie down at times to help relieve his pain. While the Board is very sympathetic to the Veteran's situation, his statements fail to reflect that he meets the schedular criteria for a higher rating. Testing has consistently revealed a degree of motion in excess of that required for a higher rating. Furthermore, while the Veteran has described incapacitating episodes and bed rest, the evidence clearly establishes that he has not been prescribed bed rest by a physician, as required by the rating criteria. See 38 C.F.R. § 4.71a, Note (1). As such, the Veteran's statements and testimony fail to demonstrate that he is entitled to a disability evaluation in excess of 20 percent at any time during the pendency of this claim. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability evaluation in excess of 20 percent for lumbar spondylosis must be denied. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's complaints as to the effects of his service-connected lumbar spine disability. In the Board's opinion, all aspects of this disability are adequately encompassed in the assigned schedular ratings. In this respect, the Veteran complains of limited motion, pain and functional impairment. A 20 percent disability rating contemplates limited or painful motion, and inherently reflects some degree of functional loss. In short, the Board finds that the assigned schedular evaluation is adequate. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). Entitlement to TDIU Benefits In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The Veteran has repeatedly alleged he is unemployable due to his service-connected lumbar spine disability. This conclusion was also reached by the September 2009 VA examiner. The Board notes that the Veteran has been in receipt of a 100 percent schedular rating, as well as special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) due to an additional disability rated at 60 percent or more since September 16, 2010. Therefore, the issue of entitlement to TDIU benefits is moot as of September 16, 2010. See generally Bradley v. Peake, 22 Vet. App. 280 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). The Veteran has been in receipt of the maximum possible benefits since that time and an award of TDIU benefits would result in no additional benefit to the Veteran. However, the issue of entitlement to TDIU prior to September 16, 2010, must still be considered. The Veteran's January 2005 VA examination report reflects that the Veteran had not worked since 2003. However, the rationale for this lack of employment was that there was no market for high-tech jobs at that time. SSA concluded that the Veteran had been disabled since December 31, 2006, due to difficulties with memory and concentration, combined with his back problems. The Veteran also asserted that he was unemployable, having retired in 1998 and then performed contract work until 2003, as a result of his back pain and PTSD. The Veteran was afforded a VA examination in October 2007. It was noted that the Veteran was last employed in May 2003 working in security. The Veteran reported that he developed peptic ulcer disease due to stress and low back pain, and subsequently left his position because of these conditions. The examiner considered all of the Veteran's service-connected disabilities and concluded that he was capable of at least sedentary work. He would have difficulty squatting, stooping or doing repetitive lifting. He could do sitting for several hours if he was allowed to stretch. He has no difficulty with communication and he had no upper extremity impairment. A November 2007 VA treatment record also reflects that the Veteran reported that he stopped working due to difficulty with back pain. According to a September 2009 VA examination report, the Veteran's low back disability kept him from maintaining his job in security. While there were multiple other medical issues requiring frequent episodes of hospitalization which would interfere with the Veteran's ability to engage in even sedentary employment, his low back condition would be sufficient to keep him from fulltime competitive employment. Due to back pain and the frequent need to lie down, the Veteran would be limited to 10 to 15 hours per week at most and would need a sedentary position with flexible hours and the ability to lie down occasionally during the day. When resolving all reasonable doubt in favor of the Veteran, the Board finds that TDIU benefits are warranted, prior to September 16, 2010. Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). In reaching such a determination, 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 level of education, special training, and previous work experience in arriving at a conclusion, 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 (2013). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Prior to September 16, 2010, the Veteran was service-connected for coronary artery disease (rated as 60 percent disabling), nephropathy (rated as 60 percent disabling), diabetes mellitus (rated as 20 percent disabling), lumbar spondylosis (rated as 20 percent disabling), posttraumatic stress disorder (rated as 0 percent disabling prior to November 27, 2007, and as 10 percent disabling as of November 27, 2007), hypertension (rated as 0 percent disabling) and erectile dysfunction (rated as 0 percent disabling), for a combined disability evaluation of 90 percent. As such, the Veteran meets the percentage requirements laid out in 38 C.F.R. § 4.16(a). In addition to meeting the schedular criteria, the record reflects that the Veteran was unable to obtain or maintain a substantially gainful occupation prior to September 16, 2010. While there are both positive and negative opinions of record, the September 2009 VA examiner specifically found that the Veteran was unemployable due to multiple disabilities, although his service-connected low back disability was alone sufficient to result in unemployability. It is also noted that when it is not possible to separate the effects of a service-connected disability and a nonservice-connected, VA will consider all of the symptomatology contained in the evidence in its evaluation of the Veteran's disabilities. See Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran has also provided VA with numerous statements regarding the severity of his back pain and his frequent need to lie down. Therefore, when viewing the evidence in a light most favorable to the Veteran, the Board finds that TDIU benefits are warranted, prior to September 16, 2010. ORDER The claim of entitlement to a disability evaluation in excess of 20 percent for lumbar spondylosis is denied. TDIU benefits are granted, prior to September 16, 2010. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs